Rapport intérimaire - Rapport No. 357, Juin 2010

1. 661. The Committee last examined this case at its meeting of March 2009 and submitted an interim report to the Governing Body [see 353rd Report, paras 1011–1027 approved by the Governing Body at its 304th Session].
2. 662. The Government sent its partial observations in a communication of 13 November 2009.
3. 663. In the absence of a full reply from the Government, the Committee had to defer the examination of this case on two occasions. Furthermore, at its meeting of March 2010 [see 356th Report, para. 9] the Committee addressed an urgent appeal and drew to the Government’s attention that, in accordance with the procedure laid down in paragraph 17 of the 127th Report, 1972, approved by the Governing Body, it would submit to the next meeting a report on the substance of this case, even if the Government’s information or observations had not been received on time. To date, the Government has not sent additional information.
4. 664. 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. 665. In its previous examination of the case, the Committee made the following recommendations [see 353rd Report of the Committee, para. 1027]:
   • (a) With regard to the allegations relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action taken to dismiss all the members of the executive committee in the context of a process of reorganization by the Minister of Education, the Committee, so as to be able to reach its conclusions in full knowledge of the facts, requests the Government to provide information, including figures, indicating whether the dismissal affected only unionized workers or whether the reorganization process and subsequent dismissal also affected other workers of the institution in question. The Committee also requests the Government to send a copy of the court decisions handed down.
   • (b) …
   • (c) With regard to the dismissal of 14 trade union members and the union leader, Mr Marlon Vinicio Avalos, from the Chinautla Municipal Authority, the Committee requests the Government to keep it informed concerning the judicial proceedings under way in connection with the six workers mentioned by the Government and concerning the workers who have been effectively reinstated in their posts, and to provide information on the other dismissed workers, including the trade union leader Mr Marlon Vinicio Avalos.
   • (d) The Committee requests the Government to take the necessary measures to promote collective bargaining in the Chinautla Municipal Authority and to keep it informed in this respect.
   • (e) With regard to the dismissal by the Directorate General for Migration of trade union leaders Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the Committee requests the Government to do everything in its power to ensure that Mr Pablo Cush – who according to the Government has been reinstated in his post – receives payment of lost wages and to keep it informed of the outcome of the judicial proceedings relating to the dismissal of trade union leader Mr Jaime Roberto Reyes Gonda. If the law prohibits or prevents the payment of these wages, the Committee considers that it should be modified.
   • (f) The Committee requests the Government to send its observations on the latest allegations presented by SITRAMUNICH relating to the dismissal by the Chiquimula Municipal Authority and the pressure placed by the Municipal Authority on the workers, who are not paid until they resign or accept a fixed-term contract, even though because a collective labour dispute is before the judicial authority and in accordance with the court’s instructions, acts of reprisal among the parties and the dismissal of workers without the court’s authorization are prohibited.

B. The Government’s partial reply

1. 666. In its partial reply of 13 November 2009, the Government indicates that it had requested the Protection (amparo) and Pre-trial Investigation Chamber of the Supreme Court of Justice to inform it whether Mr Reyes Gonda or the Directorate General of Migration had taken any action. The Chamber informed it that on 19 May 2005, Mr Reyes Gonda filed an action for amparo (protection of constitutional rights) against the Ministry of the Interior, which was refused on 7 May 2009. In the absence of any appeal by Mr Reyes Gonda, the judgement became final on 6 August 2009.
2. 667. As regards the allegations of violation of the exercise of collective bargaining, the Government indicates that it requested information from the judicial power concerning the reasons why the Conciliation Tribunal had not been convened, and was informed that on 4 March 2009, the Labour and Social Security Court of the Chiquimula Department convened the Conciliation Tribunal.

C. The Committee’s conclusions

1. 668. The Committee regrets that, despite the length of time that has passed, the Government has not provided the requested additional information, despite having been requested to do so on many occasions, including by means of an urgent appeal to submit its observations on the case.
2. 669. In these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to submit a report on this case without having the Government’s information which it had hoped to receive.
3. 670. The Committee reminds the Government that the purpose of any proceeding opened by the International Labour Organization to examine allegations of violations of freedom of association is to ensure respect for that freedom, both de jure and de facto. The Committee is convinced that, as the procedure protects governments against unfounded accusations, the latter should recognize, in their turn, the importance of submitting detailed replies on the substance of the alleged facts, with a view to objective examination.
4. 671. With regard to paragraph (a) of the recommendations concerning the allegations relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action taken to dismiss all members of the executive committee in the context of a process of reorganization by the Minister of Education, the Committee had requested the Government to provide information, including figures, indicating whether the dismissal affected only unionized workers or whether the reorganization process and subsequent dismissal also affected other workers of the institution in question and that it should send a copy of the decision of the Constitutional Court which refused the appeal for amparo filed by the executive committee. Regretting that the Government had not sent its observations in this respect, the Committee urges the Government to do so.
5. 672. As regards paragraphs (c) and (d) of the recommendations concerning the collective dispute of an economic and social nature in the Chinautla Municipal Authority, which was the subject of a complaint filed with the judicial authority, and in the course of which 14 trade union members (who according to the Government are still working) and the union leader, Mr Marlon Vinicio Avalos, were dismissed, the Committee had noted in a previous examination of the case that the judicial authority had passed judgement with regard to six of the dismissals. The Committee had requested the Government to indicate whether the six workers in respect of which a decision had been reached had been effectively reinstated in their posts, and to provide information on the other dismissed workers, including the trade union leader Mr Marlon Vinicio Avalos. The Committee regrets that despite the length of time that had passed since the alleged facts, the Committee has not received specific information whether or not the case was still pending or had been settled. In these circumstances, the Committee urges the Government to inform it without delay concerning the situation in the collective dispute in the Chinautla Municipal Authority, whether collective bargaining has taken place and whether the six workers with respect to whom a decision had been reached have been reinstated; and to send information on the situation of the other dismissed workers, including Mr Marlon Vinicio Avalos.
6. 673. As regards paragraph (e) of the recommendations, concerning the dismissal by the Directorate General for Migration of the trade union leader Mr Jaime Roberto Reyes Gonda, the Committee recalls that it had requested the Government to keep it informed of the outcome of the judicial proceedings relating to the dismissal of that trade union leader. In this respect, the Committee notes that the Government indicates that the Protection (amparo) and Pre-trial Investigation Chamber of the Supreme Court of Justice informed it that on 19 May 2005, Mr Reyes Gonda filed an action for amparo against the Ministry of the Interior, which was refused on 7 May 2009, and that the decision became final on 6 August 2009 because Mr Reyes Gonda did not appeal against it.
7. 674. As regards paragraph (f) of the recommendations, the Committee recalls that it had requested the Government to send its observations on the latest allegations presented by the Union of Workers of the Chinautla Municipal Authority (SITRAMUNICH), according to which: (1) the Chiquimula Municipal Authority dismissed several workers despite the existence of two judicial proceedings on a “collective dispute of a social and economic nature” (convocation of collective bargaining) before the Labour, Social Security and Family Court of First Instance, Chiquimula Department, in which the judge enjoined the parties to refrain from taking reprisals against the other party and indicated to the municipal authority that from that moment, any termination of a contract of employment must be authorized by the judge; and (2) the municipal authority had also initiated judicial proceedings requesting termination of the contracts of employment of several workers, in particular members of the union and made payment of the workers’ wages conditional on their giving up their membership or signing a fixed-term contract, which caused many workers to resign their trade union membership. The Committee notes that the Government indicates that on 4 March 2009, the Labour and Social Security Court of the Chiquimula Department convened the Conciliation Tribunal.
8. 675. In this regard, the Committee requests the Government to ensure that, while the Conciliation Tribunal is sitting, no further dismissals or terminations of workers’ contracts occur in the Chiquimula Municipal Authority and that payment of wages is not made conditional on resignation by the workers or signing of a fixed-term contract. The Committee also requests the Government to take the measures necessary to reinstate those workers who were dismissed without the authorization of the judge, in defiance of a judicial decision on a “convocation to collective bargaining” which prohibits any termination of contracts without judicial authorization, with payment of the wages due. The Committee requests the Government to keep it informed in this respect and to inform it of the decision of the Conciliation Tribunal.