Interim Report - Report No 323, November 2000

Case No 2017 (Guatemala) - Complaint date: 05-MAR-99 - Closed

Allegations: Acts of anti-union discrimination and intimidation, acts of violence against trade unionists, violation of a collective agreement

• Allegations: Acts of anti-union discrimination and intimidation, acts of violence against trade unionists, violation of a collective agreement
  285. 285 The complaint in Case No. 2017 is contained in a communication dated 5 March 1999 from the Trade Union of Workers of Guatemala (UNSITRAGUA). That organization sent new allegations in a communication dated 31 March 1999.
  286. 286 The complaint in Case No. 2050 is contained in a communication dated 14 September 1999 from the International Confederation of Free Trade Unions (ICFTU). The ICFTU sent additional information in communications dated 28 September 1999 and 20 January 2000, and new allegations in a communication dated 14 March 2000.
  287. 287 The Government sent partial information in communications dated 7 July and 30 November 1999.
  288. 288 In view of the lack of complete information from the Government on questions still pending, the Committee was obliged to postpone its examination of this case on two occasions. At its meeting in June 2000, the Committee drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session in November 1971, it would present a report on the substance of these cases at its next meeting, even if the complete information and observations requested had not been received in due time (see 321st Report, para. 9, approved by the Governing Body at its 278th Meeting (June 2000)). To date information has still not been received from the Government on all the questions raised.
  289. 289 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 complainant's allegations

• Case No. 2017
  290. 290 In its communication of 5 March 1999, the Trade Union of Workers of Guatemala (UNSITRAGUA) alleges that the Puerto Quetzal port enterprise, a decentralized and autonomous institution, has been violating the collective agreement in force, specifically articles 12 and 81, by failing to pay the "wage increment" of four trade union officials on the grounds that they are authorized to work for the union full time and the increment is therefore not applicable to them, and the company has not given effect to resolutions of the joint committee to restore the entitlements of those officials. UNSITRAGUA adds that the company has also disregarded the right of the trade union under the terms of government Agreement No. 122-94 to nominate workers' representatives on the company's pensions and retirement committee. At the same time, despite the fact that the collective agreement gives trade union representatives immediate access to any workplace where disputes arise, company representatives have expelled trade union officials from workplaces and insulted them. UNSITRAGUA also alleges that the company is attempting to weaken the union by implementing a voluntary retirement plan.
  291. 291 In its communication of 18 March 1999, UNSITRAGUA alleges that, following the establishment of a union on 28 September 1998 at the textiles enterprise Tamport S.A. (formerly Confecciones Minerva S.A.), the company dismissed 26 workers in mid-November 1998. In March 1999, the judicial authorities ordered the reinstatement of these workers. In February 1999, the company asked the courts to annul the contracts of employment of six members of the union's executive committee and consultative committee, but at a subsequent meeting with the labour inspectorate agreed to reinstate them and undertook not to apply any sanctions. However, the company assigned these workers to other duties and put pressure on them to leave the company, indicating that they would regret it if they did not accept the proposed redundancy settlement. The company eventually dismissed them.
  292. 292 UNSITRAGUA adds that in March 1999, following Hurricane Mitch, as part of the illegal action to dismiss 462 workers and suspend more than 100 others at the Corporación Bananera S.A. (COBSA), Mr. Marvin Leonel Cerón Hernández and Mr. Julián Guisar García, union officials of SITRACOBSA, were detained by order of the Ministry of the Interior on charges of coercion and causing damage. It is also known unofficially that about 150 orders have been issued for the arrest of officials of the unions SITECOBSA and SITECOBSAGOSA, including Jorge Estrada and Marco Vinicio Hernández Fabián.
• Case No. 2050
  293. 293 In its communications of 14 and 28 November 1999 and 20 January and 14 March 2000, the International Confederation of Free Trade Unions (ICFTU) alleges that the establishment of a trade union prompted the assembly enterprise Ace Internacional S.A., which was established with Korean funds, to issue warning letters, suspend workers without pay and adopt various acts of anti-union intimidation and discrimination including the following: (1) sexual harassment by one of the personnel heads - at the instigation of the company's director - of Mrs. Josefina Sian Rejopachi, the union's General Secretary, who was suspended without pay for three days when she rejected the harasser's attention; (2) pressure and intimidation by company representatives in an effort to force Mrs. Fransisca Ramírez Calo, the union's treasurer, Mrs. Herlinda Estrada and Mrs. María Virginia Gutiérrez to sign blank sheets of paper and accept redundancy settlements; (3) the dismissal of 35 workers, mostly union members, in August 1999; more dismissals took place in September. The ICFTU also draws attention to a number of serious violations of labour law by the company, as well as physical and verbal assaults and acts of intimidation against workers who decide to join the union.
  294. 294 The ICFTU adds that on 16 September 1999, the dismissed workers were reinstated in their posts by order of the judicial authorities. Nevertheless, the company exerted pressure on all the workers who had not been dismissed to resign and sign redundancy settlements. As a result of this, of the 500 workers employed by the company when the dismissals began, only 18 now remain. The company closed down its operations in November 1999 and made no effort at all to reinstate the several hundred workers who were dismissed for establishing a trade union.
  295. 295 The ICFTU also alleges that death threats were made against the trade unionist Mr. José Luis Mendía Flores, who was forced to leave his home. He was dismissed from a private police force and has not been reinstated in his post, despite a court ruling in his favour.
  296. 296 The ICFTU also alleges that at the assembly enterprise Tamport S.A., which is located in Zone 12 of Guatemala City, the owners have been maintaining an inflexible attitude towards workers who have formed a trade union and dismissed them without any valid reason, as well as carrying out other anti-union measures. Lastly, the company La Exacta failed to comply with 67 court orders for the reinstatement of workers dismissed in 1994, and no progress has been made in the case of the murder in 1994 of four rural workers who had attempted to establish a union.

B. The Government's reply

1. 297. In its communications of 7 July and 30 November 1999, the Government states with regard to the Puerto Quetzal enterprise that the collective agreement in force provides for a wage increment, but this is subject to a satisfactory performance appraisal. For such an increment to be granted, the employee's work performance has to be assessed, and the increment is thus more like a bonus or reward for satisfactory performance. The same collective agreement also grants four union officials the privilege of not having to work for the company in that they have permanent leave of absence, and this is used by the officials in question. As a result of this, their work cannot be assessed because they are not working for the company; since the condition of a satisfactory performance appraisal is not met in their case, it is not possible to grant the increase. However, the company has indicated to the Ministry that as soon as the workers in question resume work for the company, their work will be assessed and the increment paid. There is thus no anti-union discrimination, since the officials on leave of absence do not meet the conditions for the pay increment. The Government also adds that on 17 March 1999, the union nominated its representatives on the pensions and retirement committee; they have assumed their duties and continue to carry them out, and the allegation regarding usurpation of the right to nominate these representatives is therefore without foundation. As regards the complaints of instances of ill treatment, the Government states that according to the company these have not occurred, and that the complaint arose because of the requirement to wear uniforms and exercise restraint with regard to telephone calls, matters which are governed by the personnel regulations currently in force. The Government has also stated that according to the company, it has not implemented and has no intention of implementing a voluntary retirement plan, and the complaint in this regard is completely without foundation.
2. 298. As regards the allegations concerning the company Tamport S.A., the Government states that the company complied with the ruling of the labour judge by reinstating the following women employees: Claudia Leticia Juárez Hernández; Norma Mirina Barillas Herrera; and Rubí Lorena González García. It did not reinstate Otoniel López Cam, Jeremías Samuel Sinay Pirir and Oscar Geovany Sum Najera, because they had submitted their resignations and renounced their entitlements in accordance with the law. However, the women employees who were reinstated complained that they were being transferred to a different section where they were paid less than before their dismissals. The employer stated that this was due to a lack of work, but that it would move the workers back as soon as possible, once a satisfactory agreement was reached between the parties, and that the appropriate preparations were made at the company by the labour inspectors.

C. The Committee's conclusions

1. 299. Firstly, the Committee deeply regrets that the Government has not supplied observations on all the questions still pending, despite the time that has elapsed since the complaint was presented and despite the fact that it has been invited to present comments and observations on a number of occasions, including through an urgent appeal.
2. 300. Under these circumstances, and in accordance with the relevant procedure (see 127th Report, para. 17, approved by the Governing Body at its 184th Session in November 1971), the Committee feels obliged to present a report on the substance of this case without the benefit of all the information which it had hoped to receive from the Government.
3. 301. The Committee recalls that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward (see the Committee's First Report, para. 31, approved by the Governing Body in March 1952). In these circumstances, the Committee requests the Government to transmit as a matter of urgency complete observations on the allegations.
4. 302. The Committee notes with concern that in the present cases, the complainant has alleged various anti-union acts of discrimination and intimidation, threats against a trade unionist and violations of collective bargaining rights.
5. 303. As regards the allegations concerning the Puerto Quetzal port enterprise, the Committee notes the Government's statements to the effect that the union representatives have taken up their duties on the pensions and retirement committee and it is not the case that the company has implemented or intends to implement a voluntary retirement plan. The Committee also notes the Government's statement to the effect that the company denies the alleged ill treatment of trade union representatives and maintains that the problem is linked to the requirement to wear regulation uniforms and exercise restraint in the use of telephones. As regards the alleged failure to comply with the collective agreement in force regarding a "wage increment" for four trade union officials, the Committee notes that, according to the Government, the collective agreement in force makes that increment conditional on a performance appraisal, which is not possible in the case of the officials in question, since they have been granted full leave of absence in connection with their union duties. However, the Committee notes that article 81 of the collective agreement states the following:
   • Article 81. Government increases The company undertakes, once this agreement is in force, to pay to all its employees the pay increases awarded by the Government to public sector workers, including basic pay, bonuses or other forms of remuneration; on this assumption, the relevant government order will apply. If in the event the Government-prescribed increase is greater than the increment due for the year in question as established in the Plan of Grades, the company shall pay the difference in question.
   • The company undertakes to pay the wage increments provided for in article 33 of the current Regulations governing the grading of posts and administration of wages and salaries on the first of January each year from 1998 onwards, taking into account the provisions of the proceeding article.
   • The Committee concludes that this clause is applicable to all workers of the company and considers that the failure to apply the "wage increment" to the four trade union officials in question violates the collective agreement and constitutes an act of anti-union discrimination in that it rules out any wage increment for the trade union officials. The Committee requests the Government to take measures to ensure that article 81 of the collective agreement at the Puerto Quetzal company is applied to the trade union officials, thereby ensuring that wage increases are not denied to such officials.
6. 304. With regard to the dismissal or pressure placed on six trade unionists to make them resign from their posts at Tamport S.A. in February 1999 (following the dismissal in November 1998 of 26 workers who had formed a trade union and whose reinstatement was ordered by a court of law), the Committee notes that according to the Government, the judicial authority ordered the reinstatement of these six persons, three of whom were not actually reinstated because they had submitted their resignations from the company and renounced their entitlements. The other three were reinstated, albeit in a different section and on lower pay. The Committee notes the willingness of the company to move these workers back once a satisfactory agreement is reached, and requests the Government to confirm that they have indeed been moved back and that they receive at least the same wages as before their dismissal. Noting that in the company Tamport S.A., there have on a number of occasions been dismissals that were subsequently annulled by the courts, the Committee wishes to emphasize the principle that "No person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696).
7. 305. As regards the allegations concerning the detention of the SITRACOBSA officials Marvin Leonel Cerón and Julián Guisar García and the issue of numerous orders for the arrest of officials of SITECOBSA and SITECOBSAGOSA (including Jorge Estrada and Marco Vinicio Hernández Fabián), the Committee requests the Government to send its observations on this matter as a matter of urgency. Furthermore, the Committee requests the Government to carry out an investigation into this matter and to annul the orders and release the detainees if it is found that these actions were in response to legitimate trade union activities.
8. 306. With regard to the allegations concerning the assembly company Ace Internacional S.A., the Committee notes with concern that they refer to serious acts of anti-union discrimination and intimidation, including a case of sexual harassment against a trade union member, dismissals and pressure to force trade unionists and workers to resign. The Committee also notes that, according to the complainant, the judicial authority ordered the reinstatement of a large number of dismissed workers and that the company subsequently closed its operations in November 1999 after putting pressure on the remaining workers (about 500, according to the ICFTU) to resign and accept a redundancy settlement. The Committee urges the Government to send its observations on these allegations as a matter of urgency. Furthermore, the Committee requests the Government to carry out an investigation into this matter and, if the allegations are proven to be true, to take the necessary measures to remedy the situation.
9. 307. As regards the allegations concerning the trade unionist José Luis Mendía Flores, the Committee urges the Government to take steps as a matter of urgency to carry out a judicial inquiry into the death threats allegedly made against him and to ensure that he has been reinstated in his post in accordance with the court's ruling. The Committee requests the Government to keep it informed in this regard.
10. 308. Lastly, the Committee requests the Government to ensure compliance with the court orders to reinstate workers dismissed at the company La Exacta since 1994 and to send its observations promptly on the alleged delays in the investigation into the murders in 1994 of four rural workers who had tried to form a trade union. Moreover, the Committee requests the Government to keep it informed of the results of the judicial proceedings under way in respect of these murders and trusts that the guilty parties will be punished.

The Committee's recommendations

1. 309. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that, despite an urgent appeal, the Government has not sent complete observations on the allegations, despite their serious nature and requests it to do so as a matter of urgency as well as to send the information requested below.
   • (b) The Committee requests the Government to take steps to ensure the application to the trade union officials of article 81 of the collective agreement at the Puerto Quetzal port enterprise, which relates to the "wage increment", in such a way as not to exclude these officials from any wage increase.
   • (c) While noting that the Tamport S.A. company has already reinstated three unionists, the Committee requests the Government to confirm that these unionists have been given posts in which they receive at least the same wages as before.
   • (d) The Committee urges the Government to send its observations as a matter of urgency on the allegations concerning the detention of the SITRACOBSA officials Marvin Leonel Cerón and Julián Guisar García, and the numerous orders for the arrest of SITECOBSA and SITECOBSAGOSA officials (including Jorge Estrada and Marco Vinicio Hernández Fabián). The Committee requests the Government to carry out an investigation into this matter and to annul the orders and release the detainees if it is found that these actions were in response to legitimate trade union activities.
   • (e) The Committee urges the Government as a matter of urgency to send its observations on the allegations of anti-union discrimination and intimidation at the company Ace Internacional S.A. The Committee requests the Government to carry out an investigation into this matter and, if the allegations are proven to be true, to take the necessary measures to remedy the situation.
   • (f) The Committee requests the Government as a matter of urgency to take steps to carry out a judicial investigation into the death threats made against the trade unionist José Luis Mendía Flores, and to ensure that he has been reinstated in his post in accordance with the court ruling. The Committee requests the Government to keep it informed in this regard.
   • (g) The Committee requests the Government to ensure compliance with the court orders to reinstate the workers dismissed at the company La Exacta and to send its observations promptly on the alleged delays in the investigation into the murders in 1994 of four rural workers who had tried to form a trade union. Moreover, the Committee requests the Government to keep it informed of the results of the judicial proceedings under way in respect of these murders and trusts that the guilty parties will be punished.