Report in which the committee requests to be kept informed of development - Report No 342, June 2006

Case No 2390 (Guatemala) - Complaint date: 30-SEP-04 - Closed

Allegations: The Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS) alleges a series of acts of anti-union discrimination against members and leaders of the Union of Workers of NB Guatemala (SITRANB) by the NB Guatemala company, and specifically the dismissal of workers and intimidation and threats against members of the executive committee of the union. Moreover, the complainant organization alleges the anti-union dismissal of 52 workers of the Trade Union of Horticultural Workers of Salamá (SINTRAHORTICULTURA); although an order was given reinstating these workers, the legal procedure is still ongoing and the workers have not been reinstated. The Union of Workers of the Technical Institute for Training and Productivity (STINTECAP) alleges acts of interference and pressure on the workers to leave the union

551. The complaints are contained in communications dated 30 September and 11 October 2004, presented by the Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS), and in a communication dated 4 July 2005, presented by the Union of Workers of the Technical Institute for Training and Productivity (STINTECAP). FESTRAS sent further information in a communication dated 16 November 2004, as did STINTECAP in a communication dated 3 August 2005.

1. 552. The Government sent its observations in communications dated 30 March, 16 August and 2 November 2005 and 5 January 2006.
2. 553. 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 complainants’ allegations

1. 554. In its communications dated 30 September, 11 October, 16 November 2004 and 4 July 2005, FESTRAS alleges that in February 2003 the workers of NB Guatemala, a subsidiary of Nobland International, decided to establish a Union of Workers of NB Guatemala (SITRANB). In October 2003, when the enterprise was officially notified of the decision and a request was lodged with the Labour Inspectorate for protection from dismissal, the enterprise dismissed the following women workers by way of reprisal: Windi Analí López Matíaz, Mayra Alejandra Chácon Ortiz, Marta Yolanda Secaida Mash and Marconi Chojolan Morales. The dismissed workers and the labour inspector have been refused access to the enterprise. In spite of the conciliation hearings organized by the Ministry of Labour and Social Welfare, the enterprise refuses to reinstate the workers. The women are being pressured to make positive statements about the enterprise and, on 13 November 2003, the enterprise dismissed one of the founders of the trade union, Florencio Petet Chávez. According to the complainant organization, in meetings with the company the trade union has been singled out as being responsible for a drop in production. Pressure is being put on union leaders, who are being persecuted, accused of stealing from the enterprise and offered money to leave the union and who have received death threats. A campaign of constant harassment is being waged against the members of the executive committee.
2. 555. FESTRAS also alleges that in June 1997 the workers of Horticultura de Salamá decided to form a Trade Union of Horticultural Workers of Salamá (SINTRAHORTICULTURA) and, according to the General Labour Inspectorate, were granted protection from dismissal as of 30 July 1997. However, since July 1997 executives of the enterprise have been exerting pressure on the workers not to establish the trade union. The complainant organization adds that, on 28 August, two other executives of the enterprise, accompanied by a labour inspector, prevented 52 workers affiliated to the trade union from entering the enterprise’s facilities. On the same date, the Labour and Social Welfare Court of the second economic zone ordered the immediate reinstatement of the workers, along with the payment of any wages owed. However, when on 17 November the magistrate attempted to ensure compliance with this order, the general manager of the enterprise refused to comply, arguing that he had lodged an appeal to have the order cancelled. On 17 June 1998, the Labour Chamber of the Court of Appeals dismissed this appeal. The complainant organization states that the enterprise filed constitutional proceedings (amparo) with the Chamber for the Protection of Constitutional Rights and Preliminary Hearings, which rejected the appeal. In 2004, the workers had still not been reinstated, despite having initiated a number of proceedings with the legal authorities which continually made excuses or claimed that they were not competent in the matter.
3. 556. The organization alleges that some of the dismissed workers withdrew their action against the enterprise in exchange for money. Finally, on 24 September 2004 the Second Labour Court ordered the reinstatement of the workers and the payment of wages owed and ordered the magistrate to see that its orders were carried out, but the ruling contains an error in the dates which has led to its execution being delayed on a series of occasions.
4. 557. In its communication dated 4 July 2005, STINTECAP alleges acts of interference and pressure on the workers to leave the trade union in exchange for promotion. The organization also denounces personal threats made by telephone. A number of complaints have been lodged with the Ministry of Labour and Social Welfare, to no avail.
5. B. The Government’s reply
6. 558. In its communications dated 30 March, 15 June, 16 August, 2 November 2005 and 5 January 2006, the Government transmits its replies to the various allegations presented in the case.
7. 559. As to the allegations concerning NB Guatemala, the Government states that the Ministry of Labour and Social Welfare has taken conciliatory action in the dispute through the General Labour Inspectorate.
8. 560. As to the allegations concerning Horticultura de Salamá, the Government has sent a note it has received from the enterprise rejecting each of the allegations presented by the complainant organization. It denies that it dismissed the workers who established the trade union and states that it was they who refused to enter the enterprise’s facilities to work, as was recorded by the labour inspector who was present. It also denies that it has put pressure on workers to leave the trade union. According to the enterprise, in 1997, faced with imminent dismissal, the manager of the facility decided to form the trade union organization in order to obtain protection from dismissal. Of the 46 workers who initiated the reinstatement proceedings, only 15 have maintained their appeal, as the enterprise has come to an agreement with the others. The enterprise claims that the dispute is still going on, since whenever it tries to solve the problem with the workers individually it is faced with opposition from their trade union representative. The enterprise lists the various legal bodies that have examined the workers’ request for reinstatement; these proceedings ended when, on 8 February 2005, the workers belonging to the trade union submitted a memorandum to the Ministry of Labour and Social Welfare stating that they had all resolved the labour problems that had previously existed and declaring that they had no further grievance against the enterprise. The Government attaches a copy of this communication.
9. 561. As to the allegations presented by the Union of Workers of the Technical Institute for Training and Productivity (STINTECAP), the Government states that there is no way of determining the existence of discrimination, as there are no documents in support of the complainant’s claims. Moreover, those affected did not lodge a complaint with the judicial authority. The Government adds that the Tripartite Committee on International Labour Affairs convened the parties for a conciliation meeting and that, according to a note from the STINTECAP dated 9 August 2005, both the management of the enterprise and the trade union organization have continued to hold meetings to resolve the disputes between the parties.

C. The Committee’s conclusions

1. 562. The Committee notes that the present case refers to allegations presented by the Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS) concerning: (1) acts of anti-union discrimination against members and leaders of the Union of Workers of NB Guatemala (SITRANB) by the NB Guatemala company, and specifically the dismissal of four workers following the establishment of the trade union, and intimidation and threats against members of the executive committee of the union; (2) the anti-union dismissal of 52 workers of the Trade Union of Horticultural Workers of Salamá (SINTRAHORTICULTURA); and (3) allegations presented by the Union of Workers of the Technical Institute for Training and Productivity (STINTECAP) concerning acts of interference and pressure on the workers to leave the union.
2. 563. As to the alleged acts of anti-union discrimination against members and leaders of the SITRNB, and specifically the dismissal of four workers shortly after the foundation of the trade union, the pressure exerted on those workers, and the persecution and constant harassment of union members, the Committee notes the information provided by the Government, to the effect that the Ministry of Labour and Social Welfare has intervened in the dispute through the General Labour Inspectorate and is seeking conciliation. However, the Committee notes that, according to the allegations, despite the attempts at conciliation the enterprise refuses to reinstate the dismissed workers. The Committee recalls 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, 1996, para. 696]. This being the case, the Committee requests the Government to take measures to ensure that an independent inquiry is carried out and if it is determined that the dismissals were linked to the formation of the trade union organization and other anti-union acts, to ensure that the workers are immediately reinstated and paid wages owed and that sufficiently dissuasive sanctions are imposed on the enterprise for the anti-union acts committed. The Committee requests the Government to keep it informed in this regard.
3. 564. As to the allegations concerning the dismissal of 52 workers at Horticultura de Salamá in 1997, following the formation of the SINTRAHORTICULTURA, and all the legal proceedings ordering the reinstatement of the workers (a ruling which is still not final owing to the successive appeals and proceedings initiated by both parties), the Committee notes that, according to the Government, of the 46 workers who initiated reinstatement proceedings, only 15 have maintained their appeal, as the enterprise has come to an agreement with the others, and that on 8 February 2005 the workers belonging to the trade union organization SINTRAHORTICULTURA presented the Ministry of Labour and Social Welfare with a memorandum stating that labour issues had been resolved and that they had no further grievance against the enterprise. The Committee notes, however, that according to the documents presented by the Government, the legal proceedings appear to be still under way. This being the case, the Committee requests the Government and the complainant organization to inform it as to whether the complainant organization has withdrawn the legal proceedings it had initiated.
4. 565. As to the allegations presented by STINTECAP concerning acts of interference and pressure and threats against the workers to force them to leave the trade union, the Committee notes that, according to the Government, there are not sufficient grounds to support the allegations and those involved have not initiated legal proceedings. The Committee also notes that the Tripartite Committee for International Labour Issues intervened in the dispute in an attempt to conciliate. The Committee refers to the principle cited in previous paragraphs, to the effect that no person should be prejudiced in his or her employment by reason of legitimate trade union activities. This being the case, the Committee requests the Government to take the necessary measures to ensure that an independent inquiry is carried out into the alleged facts and to keep it informed in this regard, as well as to inform it of the outcome of the Tripartite Committee’s attempts at conciliation.

The Committee's recommendations

1. 566. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As to the allegations concerning the dismissal of four workers shortly after the foundation of the trade union, the pressure exerted on those workers, the persecution and constant harassment of union members, and the acts of anti-union discrimination against members and leaders of the Union of Workers of NB Guatemala (SITRANB) in the NB Guatemala company, the Committee requests the Government to take measures to ensure that an independent inquiry is carried out and if it is determined that the dismissals were linked to the formation of the trade union organization and the other anti-union acts, to ensure that the workers are immediately reinstated and paid wages owed and that sufficiently dissuasive sanctions are imposed on the enterprise for the anti-union acts committed. The Committee requests the Government to keep it informed in this regard.
   • (b) As to the allegations concerning the dismissal of 52 workers at Horticultura de Salamá in 1997, following the formation of the Trade Union of Horticultural Workers of Salamá (SINTRAHORTICULTURA), and all the legal proceedings in which the reinstatement of the workers had been ordered, the Committee notes the communication sent by the trade union organization to the Ministry of Labour and Social Welfare concerning the withdrawal of all the complaints that had been lodged, as indicated by the Government to the Committee. The Committee requests the Government and the complainant organization to inform it as to whether the complainant organization has withdrawn the legal proceedings it had initiated.
   • (c) As to the allegations presented by Union of Workers of the Technical Institute for Training and Productivity (STINTECAP) concerning acts of interference, pressure and threats against the workers to force them to leave the trade union, the Committee requests the Government to take the necessary measures to ensure that an independent inquiry is carried out into the alleged facts and to keep it informed in this regard, as well as to inform it of the result of the Tripartite Committee’s attempts at conciliation.