Rapport intérimaire - Rapport No. 350, Juin 2008

1. 885. The complaint is contained in a communication dated 24 October 2007 from the General Confederation of Agricultural and Urban Workers (CTC), the General Confederation of Workers of Guatemala (CGTG), the Unified Trade Union Confederation of Guatemala (CUSG), the National Coordinating Body of Farmworkers’ Organizations (CNOC), the National Trade Union and People’s Coordinating Body (CNSP), the National Trade Union Federation of Public Employees of Guatemala (FENASTEG), the Trade Union Federation of Bank and Service Industry Employees (FESEBS), the Trade Union Federation of Food and Allied Industry Workers (FESTRAS), the Trade Union Federation of Farmworkers (FESOC), the National Front for the Defence of Public Services and Natural Resources (FNL), the Izabal Banana Workers’ Union (SITRABI), the Western Distribution Workers’ Union SA (SITRADEOCSA), the Eastern Electricity Distribution Workers’ Union SA (SITRADEORSA), the Eastern Petenero Distribution Workers’ Union (SITRAPDEORSA) and the Trade Union of Workers of Guatemala (UNSITRAGUA). The complainant organizations presented new allegations in communications dated 22 November 2007 and 1 February 2008.
2. 886. The Government sent its observations in communications dated 14 November 2007 and 24 January and 22 April 2008.
3. 887. Guatemala has ratified the Freedom of Association and Protection of 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. 888. In their communication dated 24 October 2007, the CTC, the CGTG, the CUSG, the CNOC, the CNSP, FENASTEG, FESEBS, FESTRAS, FESOC, the FNL, SITRABI, SITRADEOCSA, SITRADEORSA, SITRAPDEORSA and UNSITRAGUA allege that on 23 September 2007, at 5.45 a.m., while travelling from home to work, both located at Finca Yuma (the Yuma estate) in the municipality of Morales in the department of Izabal, Mr Marco Tulio Ramírez Portela, Secretary for Culture and Sport and General Secretary of the Finca Yuma sub-branch of SITRABI, was murdered in the presence of his wife and two daughters. The crime was perpetrated by heavily armed men, their faces masked with balaclavas, on the premises of the Compañía de Desarrollo Bananero de Guatemala, SA (BANDEGUA), a subsidiary of the multinational fruit-producing company Del Monte Fresh. The complainants add that what is remarkable is that, in order to gain entry to where the crime was committed, it is necessary to pass through two security posts which control both entry and exit. These posts are manned by employees of the SERPROR private security firm, which also patrols the location and is under contract to BANDEGUA to provide security services. It is, therefore, implausible that the killers could have gained entry to the premises, carried out the killing and left the premises without being detected or detained by the private security guards, given that both entrances and exits are protected by two security posts.
2. 889. The complainants underline the fact that, in previous months, relations between the trade union leader and the management had deteriorated to the point of his being threatened with dismissal because of his union activities, together with the accusation of instigating the sabotage of production at the estate. Mr Marco Tulio Ramírez Portela lost his life on the premises of BANDEGUA which was guarded by security personnel hired by BANDEGUA, against a background of threats against the trade union. The complainants also refer to acts of violence, prior to this incident, against SITRABI leaders since 1999. Furthermore, they also point out that, on 20 July 2007, five soldiers of the Guatemalan army entered SITRABI headquarters, illegally detaining union workers and interrogating them extra-judicially regarding the names and duties of the union officials and members. The State of Guatemala has not provided any security and the investigations into the killing have not advanced as expected as regards the identification, detention and prosecution of the perpetrators and instigators.
3. 890. The complainants add that on 28 September 2007, days after the killing of union leader Mr Marco Tulio Ramírez Portela, between 8 p.m. and 11 p.m., unidentified armed persons rode through Finca Yuma on motorbikes, intimidating the population. Furthermore, since 1 October 2007, Mr Noe Antonio Ramírez Portela, General Secretary of SITRABI and brother of the murdered union leader, has been harassed by a vehicle which frequently circles and observes his home. In addition, the same official has been receiving phone calls at night from staff of the BANDEGUA company requesting the union to sign a document absolving the company of all liability for the murder of Mr Marco Tulio Ramírez Portela, which took place on company property where security guards were operating.
4. 891. In their communication of 22 November 2007, the complainant organizations refer to Finca Olga María, an estate located in the municipality of Tiquisate in the department of Escuintla where bananas are produced for export to the international market. The bananas produced on the estate are marketed internationally by the multinational fruit producer Chiquita Brands, which for some years has adopted the strategy of transferring production to the south coast of Guatemala since there is no strong union presence in that region, unlike in the department of Izabal. They allege that, as a mechanism for avoiding the free organization of workers, Chiquita Brands has set up a system of independent producers and made the employment relationship unclear through subcontracting, creating legal uncertainty as regards the identity of the employer and formally releasing themselves from the employment relationship.
5. 892. The complainants indicate that, in the case of Finca Olga María, this subcontracting of the employment relationship has been conducted via the “Empresa Frutera Internacional, SA”, which, in turn, makes use of other service providers to create legal uncertainty with regard to the identity of the employer and prevent collective organization by the workers. The complainants allege that because of appalling conditions of work, heavy exploitation and constant violation of their labour rights, the workers of Finca Olga María sought the support of UNSITRAGUA in setting up a trade union and presenting various demands to the employer for the purpose of collective bargaining. After considerable efforts by the workers, the decision was taken on 15 July 2007 to establish a union and the documentation was submitted to the Labour Department of the Ministry of Labour and Social Welfare.
6. 893. The complainants emphasize that the Labour Department of the Ministry of Labour and Social Welfare obstructed recognition of the legal personality of the union and demanded that the name of the trade union be changed. The union replied that the choice of name was a statutory freedom of the union. Nevertheless, the Director-General for Labour repeated the demand and, in view of the need to register the union, the workers changed the official name of the union from Finca Olga María Workers’ Union (SITRAFOMA) to Southern Banana Workers’ Union (SITRABANSUR), the name which was finally used for registration on 15 November 2007, four months after the start of the organizational process and following unnecessary delays. The complainants point out that the identity of the workers who formed the union was known only by the Labour Department and the General Labour Inspectorate.
7. 894. The complainants allege that, on 15 November 2007, representatives of the employers at Finca Olga María launched a series of actions harassing and detaining the provisional leaders of the union, threatening them with closure of the estate if they did not resign from the company and abandon their plans to continue with the union. On 16 November, various managers of the estate were dismissed, allegedly for not detecting or breaking up the workers’ movement before they formed the union. On 17 November, a collective dispute of a socio-economic nature was brought before the First Labour and Social Welfare Court of the department of Escuintla, whereby a set of demands for collective bargaining was addressed to the employers. During the following days, armed private security staff of the company started to circulate in the village of El Semillero, where the majority of the workers live who were involved in establishing the trade union. Moreover, Mr Fernando Bolaños met all the workers of the estate to tell them that, because of the workers who were establishing the union, the estate would close and they would lose their jobs. In a similar vein, leaflets began to circulate among the workers threatening the closure of the estate if they persisted in their intention to maintain the union. Consequently, the intervention of the Labour Inspectorate in the municipality of Santa Lucía Cotzumalguapa and of the Human Rights Prosecutor’s Office in Escuintla was requested, and both institutions indicated that they lacked resources for fuel. UNSITRAGUA then offered to cover the costs concerned but, despite this, they indicated that they would not go until the following week.
8. 895. On 20 November 2007, the workers who were forming the union were taken by armed security guards to the administrative offices, where, despite the fact that the court had not set any preliminary hearing for the socio-economic collective dispute or notified the parties, they were subjected to threats and intimidation to drop the court proceedings. Only the court and the Labour Inspectorate, to which the respective notices were given, knew about the proceedings. In the face of such pressure, a group of workers were intimidated and obliged to sign the documents by the enterprise. Nevertheless, another group of workers stood by their decision and, after being detained on the estate in view of the possibility that UNSITRAGUA might intervene in their favour, they were released during the night.
9. 896. On 21 November 2007, the workers who refused to drop the proceedings turned up for work, whereupon they were informed verbally that they had been dismissed. When the latter claimed that under constitutional rules they could not be dismissed for participating in the formation of a trade union, they were forcibly ejected by the enterprise’s armed security guards. The trade unionists’ family members who worked on the estate were also dismissed. Since the expulsion from the estate premises, Mr Francisco del Rosario López, a founding member of the provisional executive board of the union, has not been seen again. In view of his disappearance and unknown whereabouts, it is feared that his life may be in danger, and consequently the Human Rights Prosecutor’s Office in Escuintla has launched a missing person search in the hope of finding him.
10. 897. With the assistance of the Human Rights Prosecutor’s Office, a fresh request was made for intervention by the Labour Inspectorate in the municipality of Santa Lucía Cotzumalguapa in the department of Escuintla, but the inspectors refused to intervene. UNSITRAGUA therefore contacted the Labour Inspector-General, who said that it did not come within her jurisdiction (despite being Labour Inspector-General for the republic as a whole and all labour inspectors in the country being hierarchically dependent on her) and referred the matter to the Regional Labour Directorate in Escuintla, with which several fruitless attempts at communication were made. Given the urgency of the situation, UNSITRAGUA contacted the First Deputy Labour Minister, who, conscious of the Ministry’s responsibility, gave the undertaking that a labour inspector would come to the estate on 22 November to ascertain the situation and take the relevant measures. Nevertheless, no steps have been taken to date, despite the gravity of the events.
11. 898. The complainants also allege that a contractor threatened the members of the union with the words: “If the estate is closed, you’ll be found floating down the river”, a clear death threat against the workers. In addition, the UNSITRAGUA activists in the region are aware of being followed by unidentified persons, and for this reason they fear for their safety, as do the members of the union. A worrying aspect is that the employers knew the identity of all the workers participating in the union action, despite not having been notified of this. Of similar concern is the fact that the employers knew of the judicial proceedings despite not having been notified of any resolution and the fact that the judicial authority, three days after receiving the case file, had not issued the preliminary measures which are mandatory in proceedings of this type under sections 379 and 380 of the Labour Code.
12. 899. It should be emphasized that in the case of Finca Olga María, this is the first time after many unsuccessful attempts that UNSITRAGUA has managed to establish a union presence at one of the estates controlled by the banana multinationals Chiquita Brands and Dole which operate in the area, in view of the heavy anti-union measures taken at these estates to obstruct the free organization of workers. The complainants assert that it is quite clear that the conditions necessary for the exercise of freedom of association do not exist in Guatemala.
13. 900. By a communication dated 1 February 2008, the complainant organizations allege that the Supreme Court of Justice decided to cancel the trade union immunity of four officials of the Trade Union of Judiciary Workers with the aim of damaging union activities and that subsequently these officials were dismissed, without judicial authorization.

B. The Government’s reply

1. 901. In its communication of 14 November 2007 and 22 April 2008, the Government states in relation to the allegation concerning the death of Mr Marco Tulio Ramírez Portela, Secretary for Culture and Sport and General Secretary of the Finca Yuma sub-branch of SITRABI, that the general manager of BANDEGUA sent a copy of the document dated 9 October addressed to the Guatemalan Union of Workers (UGT), which among other things: (a) acknowledges the tragic incident in which Mr Marco Tulio Ramírez Portela lost his life; (b) categorically denies that the undersigned and other persons from BANDEGUA were guilty of coercion, pointing out that they were concerned that the regrettable incident might affect the working atmosphere of the enterprise; (c) states that they invited union officials to a meeting to discuss a document which was apparently circulating among the staff in which accusations were made against the enterprise, jeopardizing the good working atmosphere, but the union officials did not attend; (d) according to the investigations by the Public Prosecutor’s Office, there is no evidence of direct or indirect involvement by the enterprise in the death of Mr Marco Tulio Ramírez Portela. The Government adds that, according to the enterprise, the workers’ wages have increased on average by some 13 per cent more than what was negotiated in the collective agreement and are around 60 per cent higher than the national minimum wage in agriculture. The employers were invited by the SITRABI leaders to a meeting with the First Secretary of the Embassy of the United States and the AFL–CIO representative for Central America, and that the SITRABI leaders said that they had no suspicions of any involvement on the part of the enterprise in the death of Mr Marco Tulio Ramírez Portela. As proof of the good working atmosphere in the enterprise, the enterprise sent a document dated 27 August 2007, signed jointly with the top officials of SITRABI, who attended voluntarily to indicate their support.
2. 902. The Government also states that the unit of the Public Prosecutor’s Office dealing with offences against journalists and trade unionists was requested to provide information, and it indicated that it was unaware of the case in question. Nevertheless, the Public Prosecutor’s Office of the municipality of Morales in Izabal stated that: (1) it was aware of the murder of Mr Marco Tulio Ramírez Portela, and the relevant investigation is under way; (2) indications so far are that his death was due to political motives and not to his trade union activities; and (3) the investigation is under way without having obtained for the moment any concrete element of conviction which could lead to the conclusion that the suspects mentioned in the present case are the perpetrators of the murder.
3. 903. In its communication dated 24 January 2008, the Government refers to the allegations concerning Finca Olga María and indicates that before receiving the complaint from the complainant organization, the Government, via the Ministry of Labour and Social Welfare, took steps to resolve the dispute at the estate. The inspectors in charge of the matter met the workers and employers with the aim of examining labour–management relations. They also held meetings to clarify the events which had given rise to the complaint, but at one of the meetings the workers requested that the case opened by the Ministry of Labour and Social Welfare be referred to the Minister’s office. The employers stated that a collective dispute of a socio-economic nature had been brought against it in the First Labour and Social Welfare Court of Escuintla. Because of the existence of the collective dispute and with an eye to the further progress of the affair, they argued a conflict of jurisdiction with regard to the administrative formalities undertaken in the present case by the Ministry of Labour and Social Welfare. In view of this legal action and according to the requirements of the law, the Ministry suspended its action in the present case until such time as the court rules on who has competence to continue it.

C. The Committee’s conclusions

1. 904. The Committee observes that the complainant organizations allege in the present case: (1) the murder of trade union leader Mr Marco Tulio Ramírez Portela, Secretary for Culture and Sport and General Secretary of the Finca Yuma sub-branch of SITRABI, on 23 September 2007 by heavily armed masked men at Finca Yuma (Yuma estate) in the municipality of Morales in the department of Izabal (the estate being the property of BANDEGUA); according to the complainants, relations between the abovementioned trade union leader and the employers had deteriorated and he had been threatened with dismissal on account of his union activities; (2) acts of violence against SITRABI and its officials prior to the killing, particularly the entry of SITRABI headquarters on 20 July 2007 by armed soldiers, who interrogated the workers regarding the names and activities of the union officials; (3) that, since 1 October 2007, the General Secretary of SITRABI, Mr Noe Antonio Ramírez Portela – the brother of the murdered trade union leader – has been harassed by a vehicle which frequently circles and observes his home and has been receiving phone calls from the BANDEGUA company requesting the union to sign a document absolving the company of all responsibility for the killing on its premises where security guards were operating; (4) that, after the registration of SITRABANSUR on 15 November 2007, and even though the identity of the workers was only known by the Labour Department, the representatives of Finca Olga María harassed and threatened the union leaders with a view to making them leave the enterprise and abandon their plans to continue with the union, and after a collective dispute of a socio-economic nature was brought before the courts and a set of demands were made to the enterprise, the workers were harassed with a view to dropping the court action; the workers which did not do so were dismissed and expelled from the enterprise; since then, the whereabouts of one of the union’s founding members, Mr Francisco del Rosario López, are unknown; even though these events were reported to the Labour Inspectorate, the administrative authority took no action; and (5) the dismissal, without any judicial authorization, of leaders of the Trade Union of Judiciary Workers, because of the cancellation of their trade union immunity by the Supreme Court of Justice (the General Secretary reportedly made an ordinary labour claim, and at first and second instance the payment of wages due for the February 1995–August 2000 period was apparently ordered; the case has been before the Chamber for the Protection of Constitutional Rights (amparo) of the Supreme Court of Justice since 17 January 2007).
2. 905. The Committee observes with concern that some of the allegations made refer to serious incidents of violence against trade union officials and members (murder, disappearance, harassment and threats to physical safety and the entry of security forces into union premises) and that recently it has had to examine other cases relating to Guatemala with similarly serious allegations of violence (see for example Cases Nos 2203, 2241, 2445, 2413 and 2540). The Committee therefore emphasizes that a climate of violence, such as that surrounding the murder or disappearance of trade union leaders, or one in which the premises and property of workers and employers are attacked, constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 46].
3. 906. With regard to the allegation concerning the murder of trade union leader Mr Marco Tulio Ramírez Portela, Secretary for Culture and Sport and General Secretary of the Finca Yuma sub-branch of SITRABI, on 23 September 2007 by heavily armed masked men at Finca Yuma in the municipality of Morales in the department of Izabal (the estate being owned by BANDEGUA), the Committee notes the Government’s statement to the effect that: (i) the Public Prosecutor’s Office of the municipality of Morales, Izabal, stated that it was aware of the murder and is conducting an investigation, the indications so far being that the death was due to political motives; and (ii) the enterprise stated in a document that, according to the Public Prosecutor’s Office, there is no evidence of direct or indirect involvement on the part of the enterprise in the death of Mr Ramírez Portela. The Committee deplores this violent incident and expects that the investigation under way will allow without delay to determine responsibilities, and identify, arrest and bring to justice the perpetrators of the homicide. The Committee requests the Government to keep it informed in this regard.
4. 907. With regard to the allegation that from 1 October 2007 onwards Mr Noe Antonio Ramírez Portela, General Secretary of SITRABI and brother of the murdered union leader, has been harassed by a vehicle which frequently circles and observes his home and that he has been receiving phone calls from the BANDEGUA company requesting the union to sign a document absolving the company of all liability for the murder which took place on its property where its security guards were operating, the Committee notes the Government’s statement to the effect that the company sent a copy of the document addressed to the Guatemalan Workers’ Union (UGT), which (i) categorically denies that the BANDEGUA company had engaged in coercion; (ii) states that they invited union officials to a meeting to discuss a document which they had allegedly been circulating among the staff containing accusations against the enterprise which were detrimental to the good working atmosphere, but the union officials did not attend; and (iii) states that, according to investigations made by the Public Prosecutor’s Office, there is no evidence of direct or indirect involvement on the part of the enterprise in the death of Mr Marco Tulio Ramírez Portela. In these conditions, while noting the allegations with concern, the Committee urges the Government to take steps to investigate the allegation that Mr Noe Antonio Ramírez Portela, the brother of the murdered union leader, is being harassed by a vehicle which frequently circles and observes his home, and to provide fully the necessary protection. The Committee also requests the Government to take steps to fully investigate the allegation that on 20 July 2007 armed soldiers entered the SITRABI headquarters and interrogated the workers regarding the union leaders’ names and activities and to keep it informed in this respect.
5. 908. With regard to the allegations that after the registration of SITRABANSUR on 15 November 2007 and despite the fact that the identity of the workers was known only by the Labour Department, the representatives of Finca Olga María engaged in various actions harassing and threatening the union officials to make them leave the enterprise and abandon their plan to maintain the union and after a collective dispute of a socio-economic nature was brought before the courts and a set of demands was submitted to the enterprise, the workers were harassed to make them drop the court case (those workers who refused to drop the case were dismissed and expelled from the enterprise), the Committee notes the Government’s statement to the effect that: (1) prior to receiving the complaint, the Ministry of Labour and Social Welfare took steps to resolve the dispute at the estate, the inspectors in charge of the proceedings met the workers and employers with the aim of verifying labour–management relations and clarify the facts, but at a meeting the workers requested the case to be referred to the Minister’s office; (2) the employers stated that a collective dispute of a socio-economic nature had been brought against them in the First Labour and Social Welfare Court in Escuintla and hence they claimed a conflict of jurisdiction against the administrative proceedings; and (3) in view of such legal action and according to the terms of the law, the Ministry of Labour suspended its action in the present case until such time as the judicial authority decides who is competent to continue handling the present case.
6. 909. The Committee therefore expects that the judicial authority will issue a ruling as soon as possible with regard to: (1) the alleged acts of anti-union discrimination (harassment of union officials and workers to make them leave the union and dismissals of those who refused to do so) at Finca Olga María enterprise; and (2) the socio-economic collective dispute brought before the courts by SITRABANSUR for the purpose of negotiating a set of demands with the abovementioned enterprise. The Committee requests the Government to take immediate action on both issues and to keep it informed in this respect.
7. 910. As regards the allegation concerning the disappearance of SITRABANSUR founding member Mr Francisco del Rosario López following his expulsion from Finca Olga María, the Committee requests the Government to send its observations in this respect.
8. 911. Finally, the Committee requests the Government to send its observations without delay relating to the new allegations submitted in a communication dated 1 February 2008 concerning the dismissal of officials of the Trade Union of Judiciary Workers because of the cancellation of their trade union immunity by the Supreme Court of Justice.