Report in which the committee requests to be kept informed of development - Report No 327, March 2002

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

Allegations: Acts of anti-union discrimination and intimidation; cancellation of registration of a trade union’s officers; acts of violence against trade unionists; violation of a collective agreement

• Allegations: Acts of anti-union discrimination and intimidation; cancellation of registration of a trade union’s officers; acts of violence against trade unionists; violation of a collective agreement
  589. 589 The Committee examined these cases at its meeting in November 2000 and November 2001 and on those occasions presented an interim report to the Governing Body [see the Committee’s 323rd Report, paras. 285-309, and 326th Report, paras. 269-287, approved by the Governing Body at its 279th and 282nd Sessions (November 2000 and November 2001)].
  590. 590 The ICFTU transmitted new allegations in a communication of 14 February 2002.
  591. 591 The Government sent its observations in communications dated 9 November and 7 December 2001 and 7 January 2002.
  592. 592 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. 593. In its previous examination of the case in November 2001, the Committee made the following recommendations on the allegations that remained pending [see 326th Report, para. 287]:
   • (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 Tanport 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 secretary-general, 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; and
   • (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 relating to the death threats received by members of the Workers’ Union of Banana Plantations of Izabal (SITRABI); the threats by the Bandegua company to leave the country if the workers do not agree to a reduction of their rights under the collective agreement and the dismissals carried out by that company; and the raid on the premises of the Trade Union of Electricity Workers of Guatemala, with destruction and theft of property.

B. New allegations

1. 594. In its communication of 14 February 2002, the ICFTU states that Mr. Baudillo Arnado Cermeño Ramírez, Organization Secretary of the Trade Union of Electricity Workers, was murdered on 21 December 2001. The ICFTU further alleges that, in spite of its request that the authorities take the necessary measures to protect trade union activities, they have not adopted any measures in that respect.

C. The Government's reply

1. 595. In its communications dated 9 November and 7 December 2001 and 7 January 2002, the Government sent the following information:
   • (a) Tanport S.A.: The Government states that closure of the enterprise was announced on 27 February 2001 and, despite considerable efforts by the Inspection in support of the dismissed workers, only those who were not union members were paid. The union members took their cases to court and, after some procrastination, a precautionary restriction order was placed on the company’s owner; a meeting was arranged with her representative and it was decided to sell the machinery in order to pay the wages due. According to UNSITRAGUA, the new labour representative has yet to clarify the position in such a way that the state of the machinery and the payment of wages due to the union’s members might be verified. The Government emphasizes that the Ministry of Labour continues to support the workers and that this case is being examined in the courts.
   • (b) Ace International company: The Government states that, although no relevant resolution has been passed, the Ministry of Labour continues to protect the jobs of the workers employed at the enterprise. It adds that it will keep the Committee informed of the progress of the 16 cases currently awaiting judgement by the Constitutional Court.
   • (c) Municipality of Tecún Umán: Concerning the negotiation of a collective agreement by the municipality, San Marcos and the workers, the Ministry of Labour has succeeded, on the basis of good faith and goodwill, in reconciling the parties, but the date of the negotiations has not yet been set.
   • (d) Cardiz S.A. company: The Government states that the General Labour Inspection has declared illegal the collective suspension of individual labour contracts, announced by the company after a trade union was set up by its workforce. The relevant authorities examined the workers’ case and advised them; a commission was then set up to resolve the dispute, but the employer the abandoned negotiations. The Ministry of Labour, for its part, defended the workers’ rights, appointing counsel from the Office of the Attorney for Labour Protection (a unit of the General Labour Inspection) to defend them; the collective cases are awaiting judgement by the relevant tribunals.
   • (e) La Exacta company: The Government states that, before the possible dismissal of the case involving this company, whose real name is San Juan del Horizonte, the organized workers decided to apply for the case to be reopened, and it is being examined by the courts of Coatepeque, Quetzaltenango. The Government will keep the Committee informed of developments.
   • (f) María de Lourdes de Génova Farm: The Government states that the resolution dated 8 November 2000 (attached to its reply) cancelled the registration of the officers of the trade union of the María de Lourdes de Génova Farm, Costa Cuca, Quetzaltenango, because their position was not lawful (for example, one of them was the farm’s director, in flagrant violation of the law and statutes).
   • (g) Workers’ Union of Banana Plantations of Izabal (SITRABI), Bandegua company and Trade Union of Electricity Workers of Guatemala: The Government states that the General Labour Inspection has intervened in the follow-up to SITRABI’s allegations and that the parties have reached agreement. As to the criminal events, the Attorney-General needs to arrange the necessary investigations to ascertain what happened and who were the perpetrators. Finally, concerning the other cases, the Ministry of Labour is working towards their resolution by administrative means.

D. The Committee's conclusions

1. 596. Regarding the three trade unionists who were given new jobs at the Tanport S.A. company after being dismissed for anti-union reasons, the Committee notes with concern that, according to the Government, the company has closed and accordingly only those workers who were not members of UNSITRAGUA were paid. The Committee also notes that the case is being examined by the courts and that protective measures have been taken to safeguard the payments due to the union members. In the circumstances, recalling that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities [Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 690], the Committee requests the Government to inform it of the result of the legal proceedings under way to protect the money owed to the UNSITRAGUA members who were dismissed because of the closure of Tanport S.A. and expects that the continuing discrimination will be ended without delay.
2. 597. 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 Ace International S.A., the Committee notes that the allegations dated 1999 and regrets that the Government did not keep it informed of the results of the investigation carried out at the administrative centre but merely stated that it continues to protect the jobs of the workers employed at the enterprise and will keep the Committee informed of the progress of the 16 cases currently awaiting judgement by the Constitutional Court. In these circumstances, the Committee emphasizes the importance that it attaches to a rapid conclusion of the proceedings, since justice delayed is justice denied. Accordingly, the Committee requests the Government urgently to inform it of any court ruling that is handed down in relation to these serious allegations.
3. 598. As regards the refusal by the authorities of Tecún Umán, San Marcos, to negotiate a collective agreement with the municipality’s trade union, the Committee notes that, according to the Government, the Ministry of Labour has only managed to bring about reconciliation between the parties. The Committee again emphasizes the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [Digest, op. cit., para. 814]. It once again requests the parties to negotiate with this principle in mind and do everything possible to reach agreement; in particular, it requests the Government to actively promote the negotiation.
4. 599. As regards the closure of Cardiz S.A. company following the establishment of a trade union in the company and the detention of the workers who remained on company premises to prevent the removal of company equipment, the Committee regrets to note that, according to the Government, the establishment of the trade union led the company collectively to suspend the individual labour contracts. The Committee notes that the labour inspection declared the suspension illegal. It also notes that, after the high-level commission had failed in its attempt to resolve the dispute through its inability to prevent the employer from abandoning negotiations, the Ministry of Labour appointed counsel from the Office of the Attorney for Labour Protection in order to defend the employees’ interests in the collective cases that are now awaiting judgement by the relevant courts. The Committee deplores the facts mentioned in the allegations and expresses the hope that the judicial authority will pronounce on this case without delay; it requests the Government to keep it informed of developments in that regard. The Committee also requests the Government to ensure that no worker be detained for anti-union reasons. Finally, the Committee recalls that no person shall be dismissed or prejudiced in his employment by reason of his trade union activities. More generally, the Committee would like to have more information from the Government about these allegations and, more precisely, about the reasons for closing the Cardiz S.A. company.
5. 600. As regards the impossibility of registering the union officers at the María de Lourdes de Génova Farm, Costa Cuca, Quetzaltenango, the Committee observes that, according to the Government, the said officers’ registration was cancelled because one of the officers was the farm administrator, in flagrant violation of the law and trade union statutes. The Committee recalls that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration (Convention No. 98, Article 2.1). The Committee requests the Government to indicate which legislative provision was applied to cancel the registration of all the union’s officers. It emphasizes that it would have been adequate to have maintained the union officers with the exception of the farm administrator.
6. 601. As regards the allegations relating to the death threats against the secretary-general of the union at the María de Lourdes de Génova Farm, Mr. Otto Rolando Sacuqui García, 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 of Tecún Umán, and the dismissal of the founders of the trade union at Hidrotecnica S.A., established in 1997, the Committee deeply regrets the Government’s failure to reply and urges it to organize without delay an investigation into these allegations and keep it informed of developments. In this connection, the Committee recalls that the rights of workers’ organizations can only be exercised in a climate that is free of violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [Digest, op. cit., para. 47]. It also recalls that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a trade union are reinstated in their functions, if they so wish [Digest, op. cit., para. 703] and particularly emphasizes that a situation that gives rise to de facto impunity of the guilty parties reinforces the climate of violence and insecurity, which is extremely damaging to the exercise of trade union rights [Digest, op. cit., para. 55]. Finally, in connection with the cases of threats, the Committee urges the Government promptly to take the necessary measures to guarantee the trade unionists’ physical safety.
7. 602. As regards the allegations relating to: (1) the death threats received by members of the Workers’ Union of Banana Plantations of Izabal (SITRABI); (2) the threats by the Bandegua company to leave the country if the workers do not agree to a reduction of their rights under the collective agreement; (3) the dismissals threatened and carried out by that company (25 dismissals at five farms); and (4) the raid on the premises of the Trade Union of Electricity Workers of Guatemala, with destruction and theft of property, the Committee regrets that the Government limits itself to indicating that the General Labour Inspection has intervened in the follow-up to SITRABI’s allegations and that the parties have reached an agreement (which was not attached), that the criminal cases need to be submitted to the Attorney-General, who needs to arrange the necessary investigations, and that the Ministry of Labour is working towards their resolution by administrative means. The Committee urges the Government immediately to take the necessary measures to protect the security of the threatened trade unionists, refer the cases of the alleged death threats and raid to the Attorney-General without delay and keep it informed of the penal sanctions applied. The Committee also requests the Government to ensure that anti-union dismissals do not take place and investigate the motives for the dismissals that have occurred. Finally, as regards the pressure exerted by the Bandegua company to restrict its workers’ rights under the collective agreement, the Committee recalls that, under Recommendation No. 91, "collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded", so that the provisions of labour contracts may not be abandoned without the mutual agreement of the parties. The Committee urges the Government to ensure respect for the collective agreement and keep it informed of developments in the situation. As regards the recent allegation concerning the murder of Mr. Baudillo Arnado Cermeño Ramírez, Organization Secretary of the Trade Union of Electricity Workers, the Committee requests the Government to undertake urgently the necessary independent judicial inquiry in order to ascertain the facts and their circumstances, identify those responsible and punish the guilty parties, with a view to preventing the repetition of such acts. The Committee requests the Government to keep it informed of developments in this respect.
8. 603. The Committee deplores that the Government has still not communicated its observations on other serious allegations that remain pending (in respect of the failure to comply with the order for the dismissed workers at La Exacta company to be reinstated, it merely observes that the workers decided to apply for the case to be reopened). In these circumstances, the Committee strongly reiterates once more 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) strongly insists that the Government ensure compliance with the court orders to reinstate the workers dismissed at the La Exacta company 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. The Committee also urges the Government to take the necessary measures (legislative and other) to ensure that the reinstatement orders are complied with.

The Committee's recommendations

1. 604. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regarding the Tanport S.A. company, the Committee expects that the continuing discrimination will be ended without delay and requests the Government to inform it of the result of the legal proceedings under way to protect the money owed to the UNSITRAGUA members who were dismissed because of the company’s closure.
   • (b) As regards the Ace International S.A. assembly plant, the Committee requests the Government urgently to communicate the court rulings handed down on the serious allegations of discrimination and intimidation.
   • (c) As regards the refusal by the authorities of Tecún Umán, San Marcos, to negotiate a collective agreement with the municipality’s trade union, the Committee once again requests the parties, in negotiating, to do everything possible to reach agreement; in particular, it requests the Government to continue actively promoting the negotiation.
   • (d) As regards the closure of Cardiz S.A., the Committee expresses the hope that the judicial authority will pronounce on this case without delay and requests the Government to keep it informed of developments in that regard. The Committee also requests the Government to ensure that no worker be detained for anti-union reasons. More generally, the Committee would like to have more information from the Government about these allegations and, more precisely, about the reasons for closing the Cardiz S.A. company.
   • (e) The Committee requests the Government to indicate which legislative provision was applied to cancel the registration of all the union officers at the María de Lourdes de Génova Farm. It emphasizes that it would have been adequate to have maintained the union officers with the exception of the farm administrator.
   • (f) As regards the allegations relating to the death threats against the secretary-general of the union at the María de Lourdes de Génova Farm, Mr. Otto Rolando Sacuqui García, 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 of Tecún Umán, and the dismissal of the founders of the trade union at Hidrotecnica S.A., established in 1997, the Committee:
     • -- urges the Government to organize without delay an investigation into these allegations and keep it informed of developments;
     • -- notes that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a trade union are reinstated in their functions, if they so wish; and
     • -- urges the Government promptly to take the necessary measures to guarantee the trade unionists’ physical safety.
   • (g) As regards the allegations relating to the death threats received by members of the Workers’ Union of Banana Plantations of Izabal (SITRABI), the threats by the Bandegua company to leave the country if the workers do not agree to a reduction of their rights under the collective agreement, the dismissals threatened and carried out by that company (25 dismissals at five farms), and the raid on the premises of the Trade Union of Electricity Workers of Guatemala, with destruction and theft of property, the Committee urges the Government:
     • -- immediately to take the necessary measures to protect the security of the threatened trade unionists, place the cases of the alleged death threats and raid before the Attorney- General without delay and keep it informed of the penal sanctions applied;
     • -- to ensure that anti-union dismissals do not take place and investigate the motives for the dismissals that have occurred; and
     • -- to ensure respect for the collective agreement and keep it informed of developments in the situation.
   • (h) As regards the other serious allegations that remain pending, the Committee strongly reiterates its recommendation that the Government should:
     • -- 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;
     • -- 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; and
     • -- take the necessary measures (legislative and other) to ensure that the reinstatement orders are complied with.
   • (i) As regards the recent allegations concerning the murder of trade union leader Baudillo Arnado Cermeño Ramírez, the Committee requests the Government to undertake urgently the necessary independent judicial inquiry to ascertain the facts and their circumstances, to identify those responsible and punish the guilty parties, with a view to preventing the repetition of such acts, and to keep it informed in this respect.