Interim Report - Report No 356, March 2010

Case No 2673 (Guatemala) - Complaint date: 28-OCT-08 - Closed

Allegations: The transfer of trade union leaders without their consent in violation of the collective agreement in force

1. 779. The complaint is contained in a communication from the General Union of Workers of the Directorate General for Migration of the Republic of Guatemala (USIGEMIGRA) dated 28 October 2008. On 29 January 2009, the trade union sent further information.
2. 780. At its November 2009 meeting, the Committee noted that, despite the time that had elapsed since the submission of the complaint, it had not received the full observations requested from the Government. The Committee issued an urgent appeal to the Government and drew its 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, it would present a report on the substance of this case at its next meeting even if the full observations requested had not been received in due time. The Committee therefore urged the Government to transmit its observations as a matter of urgency [see 354th Report, para. 9]. Since then, the Committee has not received full observations from the Government concerning the complaint.
3. 781. 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

1. 782. In its communications dated 28 October 2008 and 29 January 2009, USIGEMIGRA alleges that on 18 September 2009, the joint board, a body established under section 11 of the collective agreement on working conditions in force in the Directorate General for Migration which, according to the collective agreement, has to be composed of three regular members and two alternate members representing the trade union and three representing the Directorate General for Migration, decided to transfer USIGEMIGRA trade union leaders Huberto Fidel Joachin López, Jorge Raymundo Orozco Miranda, César Augusto López González, Miguel Roberto López Pedroza, Víctor Manuel Valladares and Carlos Adán García Caniz from their posts on the border with Mexico to posts on the border with El Salvador. The complainant organization objects to the fact that when the decision was taken, the board was not composed of three regular members and two alternate members representing each of the parties, as provided for in the collective agreement in force. The workers affected filed an action for protection of constitutional rights (amparo) which was accepted. An appeal is currently pending before the Constitutional Court.
2. 783. The complainant organization adds that on 25 January 2009, the joint board (composed of another two unions separate from the complainant organization) agreed on the transfer of another group of USIGEMIGRA trade union leaders, namely Lucrecia Rufina Cuellar Castillo, Moisés Flores Morán, Mayra Leticia Vásquez Rodríguez, Rubén Darío Balcarcel López, Mario Rolando Oxom Rey and Mary Gregoria Gutiérrez García. The individuals affected filed amparo actions, some of which were denied while others resulted in provisional amparo. Despite this, the Overseer and Deputy Director again ordered the transfers following which new amparo actions were filed which are currently pending. In its communication of 29 January, the trade union alleges that five of the amparo actions filed were rejected by the judicial authority.
3. 784. USIGEMIGRA alleges that complaints were lodged with the Labour Inspectorate, which confirmed that there had been violations but did not draw up the appropriate legal measures. The Ministry of Labour called the parties to mediation meetings but these were not attended by the Directorate authorities. A mediation committee was also appointed in response to the complaints lodged with the Human Rights Prosecutor but this was also ignored by the authorities of the Directorate General for Migration.
4. 785. Finally, the complainant organization alleges the intimidation of a member of the trade union’s advisory board, Lucrecia Cuellar Castillo, who was forced to leave the union and her position as trade union leader.

B. The Committee’s conclusions

1. 786. The Committee regrets that, despite the time that has elapsed, the Government has not sent the requested observations, even though it has been invited on several occasions, including by means of an urgent appeal, to present its observations on this case.
2. 787. In these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on this case without the benefit of the information which it had hoped to receive from the Government.
3. 788. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for this freedom in both law and practice. The Committee is convinced that, if the procedure protects governments from unreasonable accusations, governments should on their side recognize the importance of formulating, for objective examination, detailed replies concerning the substance of the allegations made against them.
4. 789. The Committee notes that in this case the complainant organization alleges the transfer on two occasions (18 September and 25 January 2009) of several trade union leaders representing its organization to other more remote posts, in violation of the provisions of section 9 of the collective agreement in force in the institution which provides that trade union leaders may not be removed or transferred from their posts without their consent. The Committee notes that the decision to transfer these trade union leaders was taken by the joint board, a body established under section 11 of the collective agreement in force, which has to be composed of three regular members and two alternate members representing the union and an equal number of members representing the Directorate General for Migration. The Committee notes that, according to USIGEMIGRA, when the decisions were taken, the board was not composed in accordance with the provisions of section 11 mentioned above.
5. 790. The Committee notes that, according to the allegations, amparo actions were filed against the dismissal decisions, which were allowed in some cases and rejected in others, and that some of the amparo actions filed were the subject of an appeal which is currently pending. The Committee further notes that, according to USIGEMIGRA and to the documents enclosed, the Labour Inspectorate confirmed the failure to comply with section 9 of the collective agreement. Despite all this, the Directorate General for Migration transferred the trade union leaders, following which new amparo actions were filed which are currently pending. The Committee also notes that despite the fact that the Ministry of Labour and the Human Rights Prosecutor organized conciliation and mediation meetings to resolve the dispute, the Directorate General for Migration did not attend the meetings.
6. 791. Under these circumstances, recalling that a deliberate policy of transfers of persons holding trade union office may seriously harm the efficiency of trade union activities, the Committee requests the Government, taking into account that the transfers were decided without the consent of the trade union leaders concerned, in violation of section 9 of the collective agreement in force (a circumstance confirmed by the Labour Inspectorate), to take the necessary steps to cancel these transfers. Taking into account the problems that exist on the border of the country and the particular characteristics of work in customs, which may require transfer measures in certain cases, the Committee invites the complainant organization and the Directorate General for Migration, in the context of the conciliation proposed by the Ministry of Labour and the Human Rights Prosecutor, to endeavour to find a negotiated solution to the dispute, including the issue of the composition of the joint board when decisions affecting the trade union are taken. The Committee requests the Government to keep it informed in this regard and to provide the final outcome of the amparo appeals pending. The Committee further reminds the Government that it may avail itself of technical assistance from the Office in respect of these matters.
7. 792. With regard to the allegations concerning the intimidation of Lucrecia Cuellar Castillo, a member of the union’s advisory board who was forced to leave the union and her position as trade union leader, the Committee requests the Government to carry out an investigation into this matter and to keep it informed of the outcome thereof.

The Committee's recommendations

1. 793. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations concerning the transfer on 18 September and 25 January 2009 of several USIGEMIGRA trade union leaders, taking into account that these transfers were decided without the consent of the trade union leaders concerned, in violation of section 9 of the collective agreement in force, the Committee requests the Government to take the necessary steps to cancel these transfers.
   • (b) Taking into account the problems existing on the country’s border and the particular characteristics of work in customs, which may require transfer measures in certain cases, the Committee invites the complainant organization and the Directorate General for Migration, in the context of the conciliation and mediation proposed by the Ministry of Labour and the Human Rights Prosecutor, to endeavour to find a negotiated solution to the dispute, including the issue of the composition of the joint board when decisions affecting the trade union are taken. The Committee requests the Government to keep it informed in this regard and to provide the final outcome of the amparo appeals pending and reminds the Government that it may avail itself of technical assistance from the Office in respect of these allegations.
   • (c) With regard to the allegations concerning the intimidation of Lucrecia Cuellar Castillo, a member of the union’s advisory board who was forced to leave the union and her position as trade union leader, the Committee requests the Government to carry out an investigation into this matter and to keep it informed of the outcome thereof.