Definitive Report - Report No 81, 1965

Case No 352 (Guatemala) - Complaint date: 06-AUG-63 - Closed

1. 17. This case was last examined by the Committee at its session of November 1964, when it submitted an interim report in paragraphs 159 to 170 of its 78th Report, approved by the Governing Body at its 160th Session (November 1964).

18. At that time the Committee continued its examination of the allegations concerning acts of anti-union discrimination against workers in the GINSA factory. According to the allegations of the complainants, there was, in the GINSA factory, a Rubber Workers' Union which represented the majority of the workers (219 workers in the factory belonged to it) but which nevertheless could not obtain its registration by the labour authorities, although they recognised a union sponsored by the employers (SIGINSA). The first union was practically destroyed by the management acting in collusion with the Ministry of Labour and using every form of coercion, including the dismissal of workers who did not wish to join the employer-backed union. After the recognition by the authorities of this last-mentioned union, reprisals were started against the members of the Rubber Workers' Union in the form of mass dismissals, without the authorities taking measures to protect them. On 6 September 1963, a group of executives of the factory toured the premises urging the workers to sign on with the SIGINSA union, as they had orders to dismiss all those who failed to do so. In the face of this attitude many workers signed against their will, while others elected to resist doing so, whereupon they were dismissed. The General Secretary and the Disputes Secretary of the Rubber Workers' Union in the GINSA factory were forced to leave the factory under the threat that a bomb would be placed in a boiler and they would be accused of having done it. The complainants sent a list of the workers who were dismissed for not wishing to change their union membership, as well as a list of those who changed under pressure in order to keep their jobs. In its reply the Government stated that the Ministry of Labour and Social Welfare suggested to the two unions that were parties to the dispute (the GINSA Factory Workers' Union (SIGINSA) and the Rubber and Related Workers' Union (SITRACS)) conciliation procedures to settle their differences, which were rejected. The Government finally recognised the legal personality of SITRACS in view of its having fulfilled the legal requirements.

1. 19. The Committee observed that a discrepancy existed between the information communicated by the complainants and the observations of the Government as regards the trade union organisations involved. The complainants stated that anti-union measures were taken against the Rubber Workers' Union in favour of SIGINSA, with the result that the former was destroyed and the latter recognised by the authorities, while the Government stated that SITRACS was the majority organisation and had obtained legal personality.
2. 20. As regards the basic problem the Committee noted that the Government had not forwarded its observations on the acts of anti-union discrimination denounced in some detail by the complainants, who submitted, inter alia, a list of the persons who were forced to change their union membership and who are still working in the undertaking and a list of the persons who were dismissed for refusing to change their membership.
3. 21. In these circumstances the Committee recommended the Governing Body, in paragraph 170 of its 78th Report, to request the Government:
4. ......................................................................................................................................................
5. (a) to be good enough to explain the apparent discrepancy between its statements and those of the complainants with respect to the trade unionists who were implicated in the alleged acts;
6. (b) to furnish observations and comments on the specific acts of anti-union discrimination referred to by the complainants; and
7. (c) to be good enough to indicate the means and legal proceedings to which the workers may have recourse in the event of acts of anti-union discrimination of the kind criticised in the complaint.
8. 22. The Government sent its reply on 5 January 1965. This states that the Government has at no time committed a discriminatory or anti-trade union act; on the contrary, it has set up a special department entrusted with trade union guidance and promotion. As regards the SIGINSA organisation, at no time did the Ministry of Labour and Social Welfare deny the right of association in respect of that union; it was the latter's officers who entirely ceased to take due action and failed to comply with the conditions attached by law to the grant of legal personality. The officers of SIGINSA never asked the Ministry or the General Inspectorate of Labour to intervene with respect to the reprisals taken by the employers because workers were exercising their trade union rights. It is known unofficially that the officers themselves, together with other workers, asked the undertaking to terminate their contracts of employment with compensation. Workers who are unfavourably treated by their employer because they have exercised their right of association can report the matter to the General Inspectorate of Labour, which appoints an inspector ad hoc to examine the complaint. If clear evidence is found to the effect that the employer is taking reprisals against the workers belonging to a union, he is warned not to persist in that course; in case of a recurrence of the offence the matter is referred to the labour courts, which can apply the appropriate penalties. At present, the Government states, no complaint by any of the workers in the GINSA factory is on record.

B. B. The Committee's conclusions

1. 23. The Committee observes that the Government insists that it was the SIGINSA union that was unable to organise. The Government points out, however, that this is because the officers abandoned the procedure to obtain recognition of the union and asked the undertaking to terminate their contracts of employment with compensation. The Government also adds that, as regards the discriminatory acts denounced, the authorities were never asked to intervene in order to put an end to such acts.
2. 24. The Committee previously indicated that the complainants submitted a list of the persons on whom pressure was exerted to make them change their union membership, some of whom left the undertaking. Although the Government states that the workers who terminated their contracts of employment, with corresponding compensation, did so of their own free will, it is nevertheless rather surprising that those who took this action were, along with other workers, precisely the officers who failed to obtain registration of their union. The Government also states that no complaint was presented either to the Ministry of Labour or to the General Inspectorate of Labour regarding acts of anti-union discrimination. In view of the precise information, including the names of the persons affected, supplied to the Government by means of this complaint, the Committee considers that in order to clarify the facts the Government would have done well to state if these persons had been questioned about the events and, if so, to have sent the results of such an inquiry. With regard to the Government's statement that it has set up a special department entrusted with trade union guidance and promotion, the Committee draws attention to the danger of interference with the freedom of the trade unions entailed by the institution of such agencies unless it is clearly provided that guidance shall not be given unless the trade unions wish to avail themselves of it.
3. 25. On the other hand, however, the Committee takes note of the information supplied by the Government to the effect that the persons affected by the discriminatory acts could have filed a complaint with the General Inspectorate of Labour, which would then have advised the employers accordingly and, if necessary, referred the complaint to the judicial authorities. In this respect the Committee observes that section 62 of the Guatemalan Labour Code provides that employers are forbidden " to force or attempt to force, by whatever means, workers to leave legal trade unions or groups to which they belong or to become members of others ". The penalties for violation of this provision are laid down in section 272 of the Code.

The Committee's recommendations

1. 26. There is no evidence in the information at the Committee's disposal that the workers and trade union leaders concerned asked the administrative or judicial authorities to take the safeguards provided for in the Code; moreover, in its reply, the Government expressly denies that any such intervention was requested. In these circumstances, subject to the reservations made in paragraph 24, the Committee recommends the Governing Body to decide that this case does not call for further examination.