Effect given to the recommendations of the committee and the Governing Body - Report No 335, November 2004

Case No 2050 (Guatemala) - Complaint date: 14-SEP-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 93. The Committee last examined this case at its March 2004 meeting [see 333rd Report, paras. 61-70]. On that occasion, the Committee made the following recommendations.
2. – With regard to the La Exacta and/or San Juan El Horizonte farm, the Committee requests the Government to specify whether the amicable agreement signed on 24 October 2003 includes the reinstatement of the dismissed workers with regard to whom legal orders for reinstatement were issued, and to keep it informed of the outcome of the hearing of 16 January at the Ministry of Labour with the new owners and the workers’ representatives.
3. – With regard to the dispute at the La Aurora National Zoological Park, which was lodged with the Arbitration Court, the Committee requests the Government to keep it informed of the legal ruling with regard to the arbitrator’s decision issued in December 2003, which was appealed by the company.
4. – With regard to the allegations of the dissent from SITRACOBSA over the decision by the Ministry of Labour to cancel the suspension of the contracts of workers belonging to the legitimate trade union (SITECOBSA) of the Corporacíon Bananera S.A. company, the Committee requests the Government to send its observations with regard to the alleged suspension of employment contracts for workers belonging to the other trade union (SITECOBSA) without delay.
5. – The Committee regrets that the Government has sent no information on the other issues that remain pending since its last examination of the case and on the issues for which UNSITRAGUA has sent new information, and it urges the Government to send the information and observations requested on the following without delay:
6. – with regard to the closure of the CARDIZ S.A. company following the establishment of a trade union in the company and the unlawful detention of the workers who remained on company premises to prevent the removal of company equipment, the Committee requests the Government to send information on the outcome of the legal proceedings under way;
7. – with regard to the allegations concerning the kidnapping, assaults and threats against the trade unionists of the Santa María de Lourdes farm, Mr. Walter Oswaldo Apen Ruiz and his family, the Committee requests the Government to send its observations and to ensure that the safety of the trade union member, which has been threatened, is guaranteed;
8. – with regard to the allegations relating to the murder of trade union members, Messrs. Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urges the Government to send information in this respect without delay;
9. – with regard to the murder of trade union member, Mr. Baudillo Amado Cermeño Ramírez, the Committee requests the Government to send it a copy of the ruling handed down in this respect;
10. – with regard to the dispute involving the Banco de Crédito Hipotecario Nacional, the Committee requests the Government to keep it informed of progress in the negotiating committee on all the ongoing issues and on the new allegations presented by UNSITRAGUA;
11. – with regard to the allegations of dismissal of the founders of the trade union formed in 1997 in the Hidrotecnia S.A. company, the Committee requests the Government to keep it informed of the investigation being carried out;
12. – with regard to the Tamport S.A. company, the Committee requests the Government to inform it of the legal proceedings under way to protect the money owed to UNSITRAGUA members who were dismissed because of the company’s closure;
13. – with regard to the Ace International S.A. assembly plant, the Committee requests the Government to send the judicial rulings handed down by the Appeals Court, the Supreme Court of Justice and the Constitutional Court rejecting the proceedings begun with regard to the serious allegations of discrimination and intimidation.
14. 94. In its letters of 29 April 2004, with respect to the allegations concerning the CARDIZ S.A. company, the Government states that as the company is closed, the conduct and conclusion of the proceedings are suspended.
15. 95. As regards the La Exacta farm, the Government states that the employers’ side did not attend the conciliation meeting set for 16 January 2004. Further meetings were arranged on 30 January and 6 and 21 April to initiate dialogue with the company and to try and find a viable solution to the industrial dispute. However, their representatives did not attend those meetings. The summons to the last meeting was subject to a warning that in the event of failure an administrative penalty would be applied to the company.
16. 96. As regards the Ace International case, the Government states that as appropriate evidence was not submitted to the court of first instance, there was no possibility of doing so on appeal. An action for protection (amparo) was entered with respect to the proceedings in the Supreme Court of Justice, but this was ruled inadmissible as it was contrary to due process.
17. 97. As to the Tamport case, the Government states that this is a collective action of a social and economic character conducted by the 5th Secretariat in the Labour and Social Security Court No. 7 in the first economic area, where the plaintiff is the Tamport S.A. Workers’ Union and the defendant is the Tamport S.A. company assembly plant. The dispute has three parts: the first concerns the collective dispute and on 15 March 2003, the parties were requested to nominate their representatives. The second concerns an incident of dismissal, the current state being that one of the parties has not complied with the preliminary decision of 7 November 2002. The third part consists of the illegal strike action and, in fact, the proceedings are still in progress.
18. 98. As regards the Hidrotécnia S.A. case, the Government reports that the dispute began in 1997 when the workers formed a trade union, and as soon as the company was informed, it chose to dismiss the workers. In this respect, there is a matter of reinstatement. On 13 January 2004, a memorial was submitted ordering the extension of the embargo based on the certification by the General Property Registrar of the central zone to guarantee the sum owed by the employer in respect of wages. On 24 February 2004, a report was sent to the General Property Register asking whether the precautionary embargo order, which was necessary for reinstatement, had been implemented.
19. 99. Concerning the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Government reports that on 2 February 2004, the Attorney-General’s Office requested Lower Court No. 6 for criminal, drug trafficking and environmental crimes to reopen the case in order to continue the investigation. By a decision of 12 February 2004, the examining magistrate reopened the proceedings. The Government states that ballistic tests and information on certain telephone calls have been requested.
20. 100. The Committee observes that the Government states with respect to the CARDIZ S.A. company, that as the company is closed, the conduct and conclusion of the proceedings are suspended. The Committee recalls, however, that the Government had previously reported that the Ministry of Labour had appointed lawyers from the Workers’ Defence Service to defend the employees’ interests in the collective proceedings in the competent courts. The Committee regrets the time that has elapsed since the start of proceedings in 2000, deplores that the proceedings have been halted and requests the Government to adopt the necessary measures to reopen and expedite these proceedings.
21. 101. As regards the La Exacta and/or San Juan El Horizonte farm, the Committee notes that the Government reports that the new owners did not attend the conciliation meeting set for 16 January 2004 or those arranged subsequently and that the summons to the last meeting was subject to an administrative sanction. The Committee regrets the lack of cooperation by the company’s new owners in initiating a dialogue with the workers’ representatives and requests the Government to adopt the necessary measures to ensure that the parties engage in a dialogue to resolve the industrial dispute. The Committee observes that the Government has not specified whether the new amicable settlement concluded on 24 October 2003 includes the reinstatement of the dismissed workers in respect of whom the courts had ordered reinstatement and requests the Government it keep it informed in this respect.
22. 102. With regard to the Ace International S.A. assembly plant, the Committee notes the Government’s explanations that as appropriate evidence was not submitted to the court of first instance, there was no possibility of doing so on appeal. The Committee observes that although an action for protection (amparo) was entered with respect to the proceedings in the Supreme Court of Justice, it was ruled inadmissible as the application for protection was contrary to due process. The Committee takes note of this information.
23. 103. With regard to the Tamport S.A. company, the Committee had requested the Government to inform it of the legal proceedings under way to protect the money owed to UNSITRAGUA members who were dismissed because of the company’s closure. The Committee notes the concise information sent by the Government according to which in the proceedings concerning the industrial dispute on 15 March 2003, the parties had been requested to appoint their representatives and requests the Government to inform it of the results of those proceedings.
24. 104. As regards the allegations concerning the dismissal of the founders of the trade union formed in 1997 in the Hidrotécnia S.A. company, the Committee noted the information sent by the Government concerning the judicial process of reinstatement in the course of which, on 13 January 2004 a memorial was submitted ordering the extension of the embargo based on the certification by the General Property Registrar of the central zone to guarantee the sum owed by the employer in respect of wages. On 24 February 2004, a report was sent to the General Property Register asking whether the precautionary embargo order, which was necessary for reinstatement, had been implemented. The Committee regrets the time elapsed since the dismissals and requests the Government to adopt the necessary measures to expedite the proceedings so that the workers can achieve reinstatement in their jobs in the near future without loss of wages or, if reinstatement is not possible, they can receive full compensation.
25. 105. Concerning the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Committee notes that the Government reports that, in a decision of 12 February 2004, the examining magistrate reopened the proceedings. The Government states that ballistic tests and information on certain telephone calls were requested. The Committee requests the Government to send the decision made in that respect.
26. 106. The Committee regrets that the Government has not sent information on the other questions pending from the last examination of the case and on which UNSITRAGUA has sent new information, and urges the Government to send the requested information and observations without delay:
27. – with regard to the dispute at the La Aurora National Zoological Park, which was lodged with the Arbitration Court, the Committee requests the Government to keep it informed of the legal ruling with regard to the arbitrator’s decision issued in December 2003, which was appealed by the company;
28. – with regard to the allegations of the dissent from SITRACOBSA over the decision by the Ministry of Labour to cancel the suspension of the contracts of workers belonging to the legitimate trade union (SITECOBSA) of the Corporacíon Bananera S.A. company, the Committee requests the Government to send its observations with regard to the alleged suspension of employment contracts for workers belonging to the other trade union (SITECOBSA) without delay;
29. – with regard to the allegations concerning the kidnapping, assaults and threats against the trade unionists of the Santa María de Lourdes farm, Mr. Walter Oswaldo Apen Ruiz and his family, the Committee requests the Government to send its observations and to ensure that the safety of the trade union member, which has been threatened, is guaranteed;
30. – with regard to the allegations relating to the murder of trade union members, Messrs. Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urges the Government to send information in this respect without delay;
31. – with regard to the dispute involving the Banco de Crédito Hipotecario Nacional, the Committee requests the Government to keep it informed of progress in the negotiating committee on all the ongoing issues and on the new allegations presented by UNSITRAGUA.