Interim Report - Report No 326, November 2001

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

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

• Allegations: Acts of anti-union discrimination and intimidation; acts of violence against trade union officials; violation of a collective agreement
  269. 269 The Committee examined these cases at its meeting in November 2000 and on that occasion presented an interim report to the Governing Body [see the Committee’s 323rd Report, paras. 285-309, approved by the Governing Body at its 279th Session in November 2000].
  270. 270 The International Confederation of Free Trade Unions (ICFTU) sent new allegations in connection with Case No. 2050 in communications dated 13 March, 18 April and 18 October 2001.
  271. 271 The Government sent its observations in a communication dated 24 August 2001.
  272. 272 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. 273. In its previous examination of the case in November 2000, the Committee made the following recommendations on the allegations which remained pending [see 323rd Report, para. 309(c), (d), (e), (f) and (g)]:
2. – 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.
3. – 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.
4. – 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 International 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.
5. – 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.
6. – 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.
7. B. New allegations
8. CASE NO. 2050
9. 274. In its communications of 13 March, 18 April and 18 October 2001, the International Confederation of Free Trade Unions (ICFTU) alleges the following acts of anti-union discrimination:
10. – María de Lourdes Farm, Genova. In June 2000, the members of this trade union held a general meeting for the purpose of electing new officers, since their mandate was due to end in July of the same year. However, as a result of other problems that had arisen in the meantime, the list of officers elected was not registered, and the employers took this as an opportunity to register their own list of union officers with the General Labour Directorate of the Ministry of Labour, unlawfully using the name of the union to do so. The documents submitted to the Ministry contain many formal and substantive errors to which the Directorate made no objection. On 2 October 2000, the General Labour Directorate approved a general meetings book for the union, and on 9 October approved the union’s official membership list, executive committee register and accounts book. On 31 October 2000, the union’s membership presented a complaint concerning these actions to the Ministry of Labour, which ruled that the registration of the union’s officers had not been in compliance with the law and the registration was therefore annulled. To date, the usurping officers have still not been notified of the ruling and it has therefore not been possible to register the lawfully elected officers or to inform the union’s members of the ruling, as required by the court. Following these events, the union’s general secretary, Mr. Otto Rolando Sacuqui García, on 13 November began receiving death threats. These were reported to the prosecution authorities, and the national police were asked to provide Mr. García with protection. On 3 February 2001, Mr. Mota (the union’s labour and disputes secretary), through an act of trickery, was charged with robbery and subsequently detained at a police station. After examining witness statements and hearing Mr. Mota’s defence lawyer, the judge acquitted Mr. Mota and ordered his release. However, the representatives of the farm refused to sign the judge’s ruling, and prosecution proceedings were initiated against the farm security agents who had illegally detained Mr. Mota.
11. – Municipality of Tecún Umán. Threats were made against Mr. Walter Oswaldo Apen Ruiz and his family to make him resign from the post he held in the town and from the post of union secretary. As a result of these threats, he was persuaded to resign from both posts, despite the legal immunity he enjoyed by virtue of being secretary for the settlement of disputes of the Trade Union of Workers of Tecún Umán Municipality and secretary of the Trade Union Confederation of Guatemala (CUSG). The municipal authorities sent a letter to the union’s members referring to the notification by the Quetzaltenango Regional Directorate VI of the Ministry of Labour concerning the draft collective agreement on conditions of work which the union submitted for discussion by the direct procedure. Unfortunately, the mayor and the municipal corporation disregarded the law and convened a community meeting for 9 November 2000 for the purpose of allowing the local people to decide whether or not they accepted the conditions of the new collective agreement which, it was claimed, violated the Constitution and the Declaration of Human Rights. To date the mayor has refused to negotiate the collective agreement on the grounds that he received no authorization from the community meeting to do so.
12. – Hidrotecnica S.A. A number of workers of the company Hidrotecnica S.A. took the decision to form a union in February 1997. The company then dismissed the workers involved in this initiative, and the situation has not been resolved because the company refuses to cooperate, despite court rulings ordering the reinstatement of the workers concerned and payment of wages owed to them.
13. – Cardiz S.A. Since October 2000, workers employed by the company have encountered serious problems as a result of trying to establish a trade union. On 5 October 2000, a group of workers obtained a summons order against the company and the court issued an order prohibiting any reprisals by one party against the other. On 6 October, the owner closed the undertaking and told the workers that he could not keep it open because of a shortage of raw materials and because a client had cancelled a contract. On 25 October 2000, the workers submitted documents required to register the union with the General Labour Inspectorate and, on 23 November 2000, notice of registration was published in the Official Gazette. From that date onwards the union was legally constituted and registered with the registration department of the Ministry of Labour. The owner began removing office equipment and machinery from the company’s premises, and later suspended the contracts of 136 union members, subsequently terminating the contracts definitively by closing down the company and putting more than 600 workers out of work. As a result of all this, union members have occupied company premises since 6 November 2000 in order to prevent the removal of machinery and equipment. On 21 November, the owner ordered that the main doors to the company premises be secured with padlocks, trapping a group of union members inside; they were told by security guards that no one was now allowed to enter or leave the premises, by order of the owner. The workers who had been thus locked in reported what had happened by telephone and some hours later, the guards opened the door to let them out.
14. 275. In its communication of 18 October 2001, the ICFTU alleges that:
15. – the members of the Workers’ Union of Banana Plantations of Isabel (SITRABI) have received death threats;
16. – the enterprise Bandegua has threatened to leave the country if the workers do not accept a lowering of their rights provided by the collective agreement and they have already started to dismiss workers;
17. – the trade union premises of the Trade Union of Electricity Workers of Guatemala were searched by armed men who destroyed some of the properties and stole the rest.
18. C. The Government’s reply
19. 276. In its communication of 24 August 2001, the Government states the following:
20. – Tamport S.A. In the Labour Inspectorate file, note is taken of the conciliation initiatives that have been undertaken. (The Government also supplies some information that is not related to the Committee’s recommendations.)
21. – COBSA. The Government states that the trade union SITRACOBSA is an employer organization organized with workers of trust employed by the company, and that the workers Marvin Leonel Cerón and Julián Guisar García, who are behind the complaint, are officials of SITECOBSA, not of SITRACOBSA. The Government also states that no worker is currently being detained, and that the trade unionist Jorge Estrada, an UNSITRAGUA adviser, was detained on charges of damaging property and inciting others to break the law, charges of which he was acquitted by a judge. An investigation by the Ministry concluded that there were no detention orders against any member of the trade unions in question. Any applications for detention that were made have already lapsed, and there is thus no judicial or police action under way against the workers concerned.
22. – Ace International S.A. Following wide-ranging inquiries by the General Labour Inspectorate, administrative proceedings were ruled to be exhausted. The parties then initiated judicial proceedings, and two cases are currently before the courts.
23. – María Lourdes Farm, Costa Cuca Quezaltenango. As regards the judicial proceedings involving the accused trade union official Dimas Mota, the Government states that the employer’s refusal to sign the court ruling acquitting him does not affect the ruling or the proceedings against the agents accused of unlawfully detaining Mr. Mota. On 29 March 2001, the Attorney-General’s Office was asked to provide information on the status of those proceedings, and the Quetzaltenango regional director said that in the case in question (No. 568-2-000, of. III), “Mr. Isdaro Humberto López Hernández and Mr. Dimas Mota appear as the plaintiffs alleging assault by the accused, Mario Luis Catalán Miranda and Lucio Alfredo Miranda Vásquez; the case is closed by a voluntary settlement freely agreed by the parties and thus set aside, given that no further proceedings need to be pursued and no matters remain to be resolved …”. The case is deemed to be closed, since the aggrieved workers obtained a settlement with the police officers who had been accused of unlawfully detaining them.
24. – Municipality of Tecún Umán, San Marcos. As indicated in the complaint, the mayor of Tecún Umán in San Marcos Department, in an effort to avoid having to negotiate the collective agreement, convened a community meeting on 9 November 2000 and that meeting duly rejected any discussion of said collective agreement. It should be noted that the philosophy behind these community meetings is that of giving more power to the municipalities by enhancing political participation by citizens. Unfortunately, on this occasion, the system was used for purposes contrary to labour law. The municipalities, in accordance with the political Constitution, are autonomous, and are thus not subject to restrictions in the way they operate their institutions, in this case, the community meeting. In order to resolve the problem of negotiating the draft collective agreement, the Ministry of Labour instructed the General Labour Inspectorate to carry out a visit to the locality and the local mayor. The meeting took place in the mayor’s office, to which the workers’ delegates were refused admission, and resolution No. 882 of the Regional Labour Directorate was executed on 28 November 2000 in the workers’ absence. According to point 5 of the record of the meeting, “The undersigned labour inspectors drew the attention of the mayor to the mandatory procedure established in the Labour Code for negotiating draft collective agreements on conditions of work ...”. For reasons connected with the autonomy of the municipalities, the General Labour Inspectorate intervened solely in a conciliation and advisory capacity.
25. – Cardiz S.A. This case was examined by the Tripartite Committee for International Labour Issues which appointed a special investigation and conciliation commission. The latter was unable to reach any agreement because the employers stated that they were unable to pay the benefits and wages owed to workers.

D. The Committee’s conclusions

1. 277. The Committee notes that, with regard to the allegations that had remained pending at its meeting in November 2000, it had requested the Government: (1) to confirm that the three trade unionists who were given new posts in the company Tamport S.A. have been given posts in which they receive at least the same wages as before; (2) 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 on the numerous orders for the arrest of SITECOBSA and SITECOBSAGOSA officials (including Jorge Estrada and Marco Vinicio Hernández Fabián), to carry out an investigation into this matter and annul the orders if it is found that these actions were in response to legitimate trade union activities; (3) as a matter of urgency to send its observations on the allegations of anti-union discrimination and intimidation at the company Ace International S.A., 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; (4) 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; (5) 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; 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 also notes that the new allegations presented by the ICFTU refer to the following: (1) at the María de Lourdes Farm, the impossibility of registering the union’s officers, the death threats against the union’s general secretary Mr. Otto Rolando Sacuqui García, the detention and indictment for robbery of the union’s labour and disputes secretary, Mr. Mota, and the refusal by farm representatives to sign the judicial ruling acquitting him; (2) in the Municipality of Tecún Umán, the threats made against the union’s secretary for the settlement of disputes, Mr. Walter Oswaldo Apen Ruiz, and his family, to force him to relinquish his posts in the municipality and in the union and the refusal by the authorities to negotiate a collective agreement; (3) in the company Hidrotecnica S.A., the dismissal of the founders of the trade union established in 1997; and (4) in the company Cardiz S.A., the closure of the company following the establishment of a union and the unlawful imprisonment of workers who had remained on company premises in order to prevent the removal of machinery and equipment.
2. 278. As regards the Committee’s request for confirmation that the three trade unionists who were given new posts in the company Tamport S.A. (having been dismissed for forming a trade union and subsequently reinstated) have been reinstated in posts in which they are paid at least as much as before, the Committee notes the Government’s statement to the effect that the administrative authority has made attempts to achieve conciliation between the parties. Under these circumstances, the Committee requests the Government to take effective measures immediately to ensure that the workers in question, who were dismissed for anti-union reasons and whose reinstatement was ordered by a court, are allocated work with the same pay and benefits as they received before.
3. 279. As regards the allegation concerning the detention of the SITRACOBSA officials Mr. Marvin Leonel Cerón and Mr. Julián Guisar, and the issue of detention orders against officials of SITECOBSA and SITECOBSAGOSA (including Mr. Jorge Estrada and Mr. Marco Vinicio Hernández Fabián), the Committee notes the Government’s statements to the effect that: (1) Mr. Marvin Leonel Cerón and Mr. Julián Guisar are officials of SITECOBSA, not SITRACOBSA, and are not being detained; (2) the trade unionist Jorge Estrada was detained on charges of damaging property and inciting others to break the law, but was acquitted by the judge; and (3) there are no detention orders against trade unionists. In this regard, the Committee recalls that the arrest by the authorities of trade unionists concerning whom no grounds for conviction are found or charges made involves restrictions on trade union rights. Governments should take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which arrest for trade union activities implies [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 81]. The Committee requests the Government to take steps to ensure that this principle is fully respected.
4. 280. As regards the allegations of acts of anti-union discrimination and intimidation (including a case of sexual harassment against one female trade union member, dismissals and attempts to put pressure on trade union members to leave their jobs) at the company Ace International S.A., the Committee notes the Government’s statements to the effect that following wide-ranging inquiries by the General Labour Inspectorate, the available administrative proceedings were declared to be exhausted and the parties initiated judicial proceedings. In this respect, the Committee requests the Government to communicate the results of the administrative investigation, and expresses the hope that the judicial authorities will rule on the very serious allegations in this case, dating from 1999, in the very near future. The Committee requests the Government to supply a copy of any judicial ruling as soon as it is handed down.
5. 281. As regards the detention and indictment on charges of robbery of the labour and disputes secretary at the María de Lourdes Farm, Mr. Mota, and the refusal by the farm representatives to sign the judicial ruling acquitting him, the Committee notes the Government’s information to the effect that the employer’s refusal to sign the ruling does not affect it in any way, and that the aggrieved workers (including Mr. Mota) obtained a settlement with the police accused of illegally detaining them. Under these circumstances, the Committee will not pursue its examination of this allegation.
6. 282. As regards the allegation that the authorities in the Tecún Umán municipality in San Marcos refused to negotiate a collective agreement, the Committee notes the Government’s statements to the effect that: (1) in order to avoid discussion on the draft collective agreement, the authorities convened a community meeting during which the participants rejected any discussion of said collective agreement; (2) the philosophy behind the institution of the community meeting is that of giving greater power to the municipal authorities, by broadening political participation by citizens, but on this occasion unfortunately it was used in a way contrary to labour law; (3) the Ministry of Labour instructed the General Labour Inspectorate to carry out visits to the municipal authorities, to which the workers’ delegates were refused admission, with a view to resolving the problem of negotiating the collective agreement; and (4) for reasons connected with the autonomy of the local authorities, the General Labour Inspectorate has intervened only in a conciliation and advisory capacity, as permitted under labour law. In this regard, the Committee notes that a “community meeting” held in order to avoid negotiating a collective agreement does not stimulate or encourage the full development and application of voluntary bargaining procedures aimed at regulating conditions of employment through collective agreements, as provided for in Convention No. 98 which has been ratified by Guatemala. Under these circumstances the Committee requests the Government to take measures to ensure that the authorities in Tecún Umán, San Marcos and the trade union of that municipality negotiate the collective labour agreement in good faith and do everything possible to reach an agreement.
7. 283. As regards the allegation concerning the closure of Cardiz S.A. following the establishment of a trade union, and the unlawful imprisonment of workers who had remained on company premises in order to prevent the removal of machinery and equipment, the Committee notes the Government’s statement that this case was examined by the Tripartite Committee on International Labour Issues which appointed a special commission of inquiry and conciliation, and that the commission had failed to come to any agreement because the company representatives had said that they were unable to pay the benefits and wages owed to the workers. In this respect, the Committee notes that the allegations go beyond the payment of wages and therefore requests the Government to take steps immediately to begin an inquiry covering all the allegations and to communicate all the necessary information it may receive during such an investigation.
8. 284. Lastly, the Committee greatly regrets that the Government has not communicated its observations on certain allegations that had remained pending or on the new allegations presented in Case No. 2050. Under these circumstances, the Committee strongly reiterates its previous recommendations that the Government should: (1) take steps as a matter of urgency to carry out a judicial investigation into the death threats made against the trade unionist José Luis Mendía Flores, to ensure that he has been reinstated in his post in accordance with the court ruling, and to keep the Committee informed in this regard; and (2) strongly insists that the Government ensure compliance with the court orders to reinstate the workers dismissed at the company La Exacta and 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; the Committee requests the Government to keep it informed of the results of the judicial proceedings under way in respect of these murders and insists that the guilty parties will be punished. The Committee stresses that justice delayed is justice denied [see Digest, op. cit., para. 56].
9. 285. The Committee also requests the Government to communicate its observations in relation to the following allegations: (1) at the María de Lourdes Farm, the impossibility of registering trade union officers and the death threats made against the union’s general secretary Mr. Otto Rolando Sacuqui García; (2) in the municipality of Tecún Umán, the death threats made against the union’s secretary for the settlement of disputes, Mr. Walter Oswaldo Apen Ruiz, and his family, to force him to relinquish his job; and (3) in the Hidrotecnica S.A. enterprise, the dismissal of the founders of the union established in 1997.
10. 286. The Committee notes that the ICFTU has recently presented new allegations (18 October 2001) and requests the Government to forward urgently its observations in this regard.

The Committee's recommendations

1. 287. In view of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take immediate and effective steps to ensure that the three trade unionists who were given new jobs at the Tamport S.A. company after being dismissed for anti-union reasons are given posts in which they receive at least the same wages and benefits as before.
   • (b) As regards the allegations of anti-union discrimination and intimidation (including one case of sexual harassment of a female trade unionist, dismissals and attempts to put pressure on trade unionists to resign from their posts) at the company Ace International S.A., the Committee requests the Government to communicate the results of the investigation that has been carried out into this matter and expresses the hope that the judicial authorities will rule on these serious allegations, dating from 1999, in the very near future. The Committee requests the Government to supply a copy of any court ruling that is handed down.
   • (c) The Committee requests the Government to take measures to ensure that the authorities in Tecún Umán, San Marcos and the trade union of that municipality negotiate the collective labour agreement in good faith and do everything possible to reach an agreement.
   • (d) As regards the allegation concerning the closure of Cardiz S.A. following the establishment of a trade union, and the unlawful imprisonment of workers who had remained on company premises in order to prevent the removal of machinery and equipment, the Committee requests the Government to take measures immediately to begin an inquiry covering all the allegations and to communicate all the necessary information it may receive during such an investigation.
   • (e) The Committee strongly reiterates its recommendation that the Government should: (1) as a matter of urgency take steps to carry out a judicial investigation into the death threats made against the trade unionist José Luis Mendía Flores, ensure that he has been reinstated in his post in accordance with the court ruling, and keep the Committee informed in this regard; and (2) recalling that justice delayed is justice denied, strongly insists that the Government ensure compliance with the court orders to reinstate the workers dismissed at the company La Exacta and 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, and keep the Committee informed of the results of the judicial proceedings under way in respect of these murders.
   • (f) The Committee requests the Government to communicate its observations on the following allegations: (1) at the María de Lourdes Farm, the impossibility of registering the union’s officers, and the death threats against the union’s general secretary Mr. Otto Rolando Sacuqui García; (2) in the municipality of Tecún Umán, the threats made against the union’s secretary for the settlement of disputes, Mr. Walter Oswaldo Apen Ruiz, and his family, to force him to relinquish his post in the municipality; and (3) in the company Hidrotecnica S.A., the dismissal of the founders of the trade union established in 1997.
   • (g) The Committee urges the Government to send without delay its observations concerning the recent allegations put forward by the ICFTU in its communication of 18 October 2001.