Rapport intérimaire - Rapport No. 364, Juin 2012

1. 502. The Committee examined the substance of this case on six occasions [see 330th, 336th, 342nd, 348th, 351st and 359th Reports], the last of which was at its March 2011 meeting, when it submitted an interim report to the Governing Body [see 359th Report, paras 506–528, approved by the Governing Body at its 310th Session].
2. 503. The Trade Union Confederation of Guatemala (UNSITRAGUA) sent information regarding the issues arising in the present case in a communication dated 1 June 2011.
3. 504. The Government sent its observations in communications dated 25 October 2011 and 27 March 2012.
4. 505. 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. 506. At its March 2011 meeting, the Committee made the following interim recommendations relating to the allegations presented by the complainant organizations [see 359th Report, para. 528]:
   • (a) The Committee regrets the significant obstacles and delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the exercise of the right to strike by the trade union and requests the Government to promote collective bargaining and to keep it informed in that regard.
   • (b) The Committee asks the Government to confirm that the trade union leader Mr Fletcher Alburez has been reinstated as ruled by the court.
   • (c) The Committee invites the complainants to provide information as to whether all issues relating to the allegations concerning the organization manual have now been resolved.
   • (d) As to the remaining allegations, in the absence of the Government’s observations, the Committee yet again reiterates its previous recommendations which are reproduced below and urges the Government to send the information or take the actions requested:
     • – with regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid, in 2002, on the headquarters of the trade union at the company ACRILASA and burning of documents;
     • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard;
     • – with regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.

B. Additional information from the complainant organizations

1. 507. In a communication dated 1 June 2011, UNSITRAGUA provided information regarding the proceedings instituted following the strike which took place at the Supreme Electoral Tribunal. The complainant organization states that the count of the number of workers who supported the legal strike movement was completed in February 2011. On 9 February 2011, the Fifth Labour and Social Welfare Court of the Department of Guatemala upheld the application filed by the Trade Union of Workers of the Supreme Electoral Tribunal (STTSE) to have the strike movement declared legal and stated that the workers had a period of 20 days following notification of the ruling by the corresponding court in which to declare the strike. On 11 February 2011, the authorities of the Supreme Electoral Tribunal lodged an appeal for annulment against the ruling of the Fifth Labour and Social Welfare Court, which was rejected as inadmissible and untimely.
2. 508. Finally, on 16 February, the authorities of the Supreme Electoral Tribunal lodged an appeal with the Third Labour and Social Welfare Chamber, which ordered compulsory arbitration. According to the complainant, the appeal was lodged after the legal time limit and follows a delay of nearly two years in the count of the number of striking workers, and it violates the right to strike since the strike, despite the claims that strike action is not permissible during electoral periods as it undermines the security of the State and its people, was declared legal by the Fifth Labour and Social Welfare Court three months prior to general elections being called by the Supreme Electoral Tribunal. UNSITRAGUA further argues that the Third Labour and Social Welfare Chamber is acting as if it were a legislative body in its decision to deem electoral services to be essential services in which strikes are prohibited.

C. The Government’s reply

1. 509. In its communication dated 25 October 2011, concerning the allegations against the Municipality of El Tumbador, the Government indicates that it requested information from the Fourth Chamber of the Labour and Social Welfare Appeals Court dealing with the abovementioned collective economic and social dispute brought by the ad hoc committee of workers of the municipality. The court issued a rectification order, stating that:
   • (A) In accordance with the provisions of section 67 of the Judiciary Act, judges have the authority to rectify the proceedings, at any stage in the process, when a substantive error has been made which infringes the rights of any of the parties. For the purposes of this Act, a substantive error shall be understood to exist when constitutional guarantees, legal provisions or essential formalities of the proceedings have been violated. (B) Furthermore, section 365 of the Labour Code clearly establishes that appeals must be made within three days of the ruling; and section 324 of the Labour Code provides that submissions relating to economic and labour-related disputes may be made at any time and on any day. (C) In this case, the parties (...) were notified of the ruling against which the appeal was lodged on 23 February 2005 and the appellant filed the appeal on 2 March 2005, that is to say after the deadline established by law. (D) In accordance with the above and the guarantee of due process of law, whereby every court is bound to undertake the process of investigation and analysis, all judges are legally required to comply with the relevant rules of judicial procedure so as to protect legal certainty and due process. (E) Considering that in this case a mistake was made which violated due process, it is appropriate to order that the proceedings be rectified as from the decision of 3 March 2005, which upheld the submitted appeal, and to issue a ruling that is in conformity with the law, whereby the situation should be resolved.
2. 510. At the same time, the Government states that the members of the ad hoc committee of workers of the Municipality of El Tumbador did not file for protection of their constitutional rights (amparo) with the corresponding constitutional body.
3. 511. In its communication of 27 March 2012, regarding the dismissal of the trade unionist Mr Dick Fletcher Alburez, the Government states that the Ministry of Labour and Social Welfare requested information from the Ministry of Public Health and Social Assistance. The legal adviser of this ministry stated that Mr Fletcher Alburez had been reinstated following ordinary labour reinstatement proceedings and a ministerial reinstatement order of 12 June 2007. The Government also states that he was awarded damages and 12 months’ wages.

D. The Committee’s conclusions

1. 512. The Committee deeply regrets that the Government’s reply remains incomplete despite the fact that the allegations refer to events which took place several years ago and include acts of violence against trade unionists, acts of discrimination and anti-union interference. While noting the recent efforts made by the Government to provide information regarding previous requests, the Committee regrets the lack of cooperation regarding the various pending issues and observes that the Government has still not provided information on establishing a tripartite commission to undertake the independent investigations suggested by the Committee on Freedom of Association. The Committee firmly urges the Government to provide information on the pending issues in the very near future.
2. 513. With regard to the significant obstacles and delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the exercise of the right to strike by the trade union (recommendation (a)), the Committee notes UNSITRAGUA’s statement that the count of the workers who supported the legal strike movement was completed in February 2011 and, after various appeals, the Third Labour and Social Welfare Chamber ordered compulsory arbitration. The Committee regrets that the Government has not responded to UNSITRAGUA’s allegation that, as a consequence of the procedural delay, the strike was delayed until the country was in a period of elections. The Committee requests the Government to keep it informed of the outcome of the compulsory arbitration and to send it information concerning the allegation of delays to the right to strike (this right is recognized in law) contained in UNSITRAGUA’s latest communication, in particular with regard to the alleged refusal by the Supreme Electoral Tribunal to uphold the workers’ right to strike during the whole of the electoral period.
3. 514. With regard to the dismissal of the trade unionist Mr Dick Fletcher Alburez (recommendation (b)), the Committee notes with interest that he has been reinstated to his work post following the ministerial reinstatement order of 12 June 2007 and has been awarded damages and 12 months’ wages.
4. 515. With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority and the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios (recommendation (d)), the Committee takes note of the Government’s statement that the Fourth Chamber of the Labour and Social Security Appeals Court issued a rectification order (which will lead to a new ruling by the Appeals Court as the workers – the ad hoc committee – have not brought amparo proceedings with regard to this ruling). In this respect, the Committee recalls that this case dates back to 2002 and emphasizes that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105]. The Committee deplores this excessive delay and firmly expects that proceedings to reinstate the dismissed workers will be completed in the very near future. The Committee requests the Government to keep it informed of the future ruling on this matter.
5. 516. With regard to its request for measures to be taken to ensure that all wages owed to the union leader Mr Gramajo are paid without delay, the Committee notes that the Government has not provided any information on this matter. The Committee urges the Government once again to take steps to ensure that Mr Gramajo is paid all outstanding wages without delay and to keep it informed in this regard.
6. 517. As to the remaining allegations, in the absence of the Government’s observations, the Committee again reiterates its previous recommendations which are reproduced below and urges the Government to send the information and take the actions requested:
   • – with regard to the alleged unilateral imposition by the Supreme Electoral Court [Tribunal] of an organization manual (dealing with matters related to employees’ duties, posts and salary levels), the Committee requests the complainant organizations to indicate whether all the issues regarding the organization manual have been resolved;
   • – with regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid in 2002 involving the burning of documents at the headquarters of the trade union at the ACRILASA company; and
   • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the labour inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.