Interim Report - Report No 344, March 2007

Case No 2241 (Guatemala) - Complaint date: 25-OCT-02 - Closed

Allegations: The complainant organizations allege a number of acts of anti-union discrimination and harassment in the La Comercial SA enterprise, the Higher Electoral Court and the Raphael Landívar University, as well as physical and verbal abuse of trade union members

1024. The Committee last examined this case at its March 2006 meeting, when it presented an interim report to the Governing Body [see 340th Report, approved by the Governing Body at its 295th Session (March 2006), paras 813–830]. The Trade Union of Workers of Guatemala (UNSITRAGUA) presented new allegations in a communication dated 29 May 2006.

1. 1025. The Government sent its observations in communications dated 10 and 29 May and 6 November 2006, and 9 January 2007.
2. 1026. 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. 1027. At its March 2006 meeting, the Committee made the following recommendations [see 340th Report, para. 830]:
2. (a) Concerning the allegations regarding the refusal by the enterprise La Comercial S.A. to recognize and to bargain collectively with the union of workers of La Comercial S.A. and the refusal to deduct union dues, and the new allegations presented by UNSITRAGUA on the appointment of an ad hoc committee of workers with which the signature of an agreement has been simulated, the Committee requests the Government to take the necessary measures to enable the trade union to enter freely into negotiations; to ensure that workers are not subjected to intimidation to accept the collective agreement against their will and to ensure that the collective agreement with the non-unionized workers does not undermine the rights of workers belonging to the trade union. The Committee requests the Government to keep it informed in this respect.
3. (b) As to the allegations concerning the anti-union harassment of the members of the workers’ union of Rafael Landívar University by the university authorities after the trade union had submitted a draft collective agreement on working conditions, the Committee repeats its request to the Government to carry out an investigation without delay to determine those truly responsible for these acts of anti-union harassment and to ensure that they are appropriately punished so that this kind of discrimination is avoided in future within the university. The Committee requests the Government to keep it informed in this respect.
4. (c) Concerning the allegations of the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Workers’ Union of the Higher Electoral Court, the Committee requests the Government to take the necessary measures to review the decision of the Higher Electoral Court to dismiss its employees, only six days after they had joined a trade union and to keep it informed in this respect.
5. (d) The Committee requests the complainants to send information on the employment situation of worker Ulalio Jimenez Esteban, member of the Workers’ Trade Union of the Higher Electoral Court and, if he has indeed been dismissed, to send information on the specific reasons advanced for his dismissal. In addition, the Committee requests the Government promptly to send its observations regarding the alleged dismissal of Mr. Victor Manuel Cano Granados and the 15-day suspension of Mr. Pablo Rudolp Menéndez Rodas, who are members of the Workers’ Trade Union of the Higher Electoral Court.
6. B. New allegations from UNSITRAGUA
7. 1028. In its communication dated 29 May 2006, UNSITRAGUA refers to the June 2005 examination of the case, and specifically to recommendation (c) of the Committee on Freedom of Association, which is as follows:
8. As to the allegation regarding the dismissal of the worker Marco Antonio Estrada López, a member of the Workers’ Union of La Comercial S.A., the Committee, noting that the complainant organization states that the judicial authority ordered that he be reinstated in August 2004, requests the Government to ensure that the worker in question is reinstated in his post.
9. UNSITRAGUA indicates in this regard that the worker in question has not been reinstated. It adds that, although the aforementioned trade union requested the General Labour Inspectorate to declare null and void the collective agreements negotiated between the enterprise and the permanent committee of workers (non-unionized and controlled by management), it has not received a response. At the same time, although the case was submitted to the Tripartite Commission on International Labour Affairs, there has been no follow-up, and the Government continues to disregard the recommendation of the Committee on Freedom of Association requesting it to guarantee the trade union the exercise of the right to collective bargaining.
10. 1029. As to the Committee’s recommendation concerning Rafael Landívar University, UNSITRAGUA states that, despite the gravity of the alleged incidents, the Government has so far failed to carry out the investigation called for by the Committee on Freedom of Association, as there is no genuine willingness to guarantee the exercise of the right to freedom of association in a climate free from any kind of pressure or violence.
11. 1030. Commenting on the Government’s statements to the Committee on Freedom of Association concerning the Movimiento Fe y Alegría, examined in March 2006, UNSITRAGUA considers that the judicial authority has been guilty of a miscarriage of justice and that its ruling revoking the reinstatement of workers compounded an infringement of the law. UNSITRAGUA adds that action taken by the trade union prompted the employer to stop using fixed-term contracts for permanent work, but that the employer then proceeded to set up the so-called Fathers’ and Mothers’ Associations (APAMCE) as civil associations, on the instructions of the Ministry of Education (which provides funding for wages for the Movimiento Fe y Alegría programme), with the aim of employing teachers and administrative staff while formally avoiding any labour relationship with the Asociación Movimiento Fe y Alegría (now the Fundación Movimiento Fe y Alegría) and preventing the workers from joining the trade union. The General Labour Inspectorate, which carried out an entirely objective and impartial investigation into this matter, found that the creation of the so-called APAMCE and the supposed recruitment by these associations of personnel to provide services in Fundación Movimiento Fe y Alegría centres was not only an attempt to conceal the identity of the actual employer but also prevented the workers from joining the trade union; they were even prohibited from communicating with trade union officials. This report has not been transmitted to the trade union by the Ministry of Labour and Social Security.
12. 1031. Since workers from some of the work centres supplied vital information for the abovementioned investigation, and in order to avoid their dismissal by way of reprisal (given that the labour inspectorate cannot provide effective guarantees that workers who denounce violations of their rights will not suffer reprisals), the decision was taken for an ad hoc committee of united workers to request the judicial authority to serve a summons on the APAMCE at the La Esperanza centre. These workers have been threatened with dismissal if they do not withdraw their summons request, and attempts have been made to force them to sign documents putting an end to the dispute, despite the fact that they have been threatened with dismissal and even physical harm; these threats have also been directed at the trade union’s officials. There are fears for the personal safety of both the workers bringing this case and of the trade union officials, who have received threats to their safety from an APAMCE manager at the aforementioned education centre.
13. 1032. With regard to the recommendations concerning the Higher Electoral Court, UNSITRAGUA provides information to the effect that Ulalio Jiménez Esteban is still working, but that legal action has been initiated to obtain authorization to dismiss him. To date, the Government has not taken any steps to force the Higher Electoral Court (the employer) to reconsider the dismissal of the workers. As to Víctor Manuel Cano Granados, his case is currently being heard by the Supreme Court of Justice as part of an appeal brought by the worker against the violation of his fundamental rights by the ordinary courts. Pablo Rudolp Menéndez Rodas, for his part, has brought a case alleging reprisals, but this has been suspended as a result of the court’s insistence on the Higher Electoral Court being served a summons to appear before it as a defendant, whereas the collective dispute (principal legal action) has been brought against the State of Guatemala; the worker in question is being harassed on the grounds that he is the brother of the union’s labour and disputes secretary.
14. C. The Government’s new observations
15. 1033. In its communications dated 10 and 29 May and 6 November 2006, and 9 January 2007, the Government states that the General Labour Inspectorate, as the complainant, dealt with a case concerning the exercise of freedom of association within the Higher Electoral Court, which according to a list enclosed by the Government has not yet been settled. With regard to the 15-day suspension without pay of Pablo Rudolp Menéndez Rodas (a member of the trade union), on the grounds that he allegedly committed a disciplinary fault on 12 July 2003, the Government states that a case against the Higher Electoral Court in connection with an act of reprisals is being heard by the Fifth Court of Labour and Social Security (the party bringing the case did not cite the Higher Electoral Court, but rather the Office of the Attorney-General). The Government further states that disciplinary faults were committed by Víctor Manuel Cano Granados, as verified by the labour inspectorate, and that he was dismissed with just cause by the Higher Electoral Court. The Government gives a summary of the legal actions brought in connection with this case and states that the ruling of the Supreme Court on an appeal is currently awaiting signature by the judges. As regards Ulalio Jiménez Esteban, his employer (the Higher Electoral Court) reports that he committed disciplinary faults and that, on the basis of a report by the labour inspectorate and other documentary evidence, and following an application to the Labour Court, he was ordered to be removed from his post as a porter. The legal appeals lodged by the worker in question were dismissed.
16. 1034. With regard to the issues concerning Rafael Landívar University, the Government states that, according to the allegations presented by UNSITRAGUA, ever since the draft Collective Agreement on Working Conditions was presented, the employer has been implementing strategies aimed at maintaining an ongoing climate at work of harassment and tension. According to this organization, on 31 August 2002 the Secretary-General of the union, Timoteo Hernández Chávez, was intercepted on his way home by four armed men, who threatened to kill him and robbed him of various belongings, including several audio cassettes with recordings of meetings of the trade union’s executive committee. On this matter, the Government states that the Office of the Special Attorney for Crimes against Journalists and Trade Unionists has reported that the case has been dropped, in view of the fact that the complainant, Timoteo Hernández Chávez, said in a statement to the Office of the Attorney that he did not wish to pursue his complaint as he had not recognized the persons who attacked him. As a result, the complaint was referred to the general archive of the Public Prosecutor’s Office on the authorization of the competent judge.

D. The Committee’s conclusions

1. 1035. The Committee observes that the allegations pending in the present case refer to a number of acts of anti-union harassment in La Comercial SA, the physical and verbal abuse of members of the Workers’ Union of Rafael Landívar University by the university authorities, the dismissal of members of the Trade Union of Employees of the Higher Electoral Court and the 15-day suspension of one member. The Committee also observes that UNSITRAGUA presented additional information and new allegations.
2. 1036. With regard to the allegations concerning La Comercial SA, the Committee had requested the Government during its previous examination of the case to take the necessary measures to enable the trade union to enter freely into negotiations; to ensure that workers are not subjected to intimidation to accept the collective agreement against their will; and to ensure that the collective agreement with the non-unionized workers does not undermine the rights of workers belonging to the trade union. The Committee regrets that the Government has not supplied its observations regarding these matters and observes that, according to UNSITRAGUA, the Government has disregarded the Committee’s conclusions and these issues have not been followed up by the Tripartite Commission on International Labour Affairs. The Committee observes that, according to UNSITRAGUA, Marco Antonio Estrada López (whose reinstatement had been ordered by the judicial authority in August 2004 and regarding whom the Committee had requested the Government to ensure that he was reinstated in his post [see 337th Report, para. 917(c)]), has not yet been reinstated. The Committee requests the Government to ensure that this trade union member is reinstated in his post (as ordered by the judicial authority) and that the Workers’ Union of La Comercial SA is allowed to enter into negotiations with this enterprise without it concluding a collective agreement with non-unionized workers.
3. 1037. With regard to the allegations concerning Rafael Landívar University (according to the complainants, after the union submitted a draft collective agreement on working conditions, the members of the union were verbally and physically abused and its Secretary-General, Timoteo Hernández Chávez, was attacked by armed men on his way home [see 337th Report, para. 917]), the Committee notes that, according to UNSITRAGUA, the investigation called for by the Committee was not carried out. The Committee also notes the Government’s statement to the effect that the Secretary-General of the trade union, Timoteo Hernández Chávez, informed the Special Attorney for Crimes against Journalists and Trade Unionists that he did not wish to pursue his complaint as he had not recognized the persons who assaulted him. The Committee regrets the acts of violence reported in the allegations. It also stresses that a free and independent trade union movement can only develop in a climate that is free from violence, threats and pressure. The Committee requests the Government to carry out without delay an investigation into the physical and verbal abuse of the members of the Workers’ Union of Raphael Landívar Universityand and to ensure that those responsible are appropriately punished. It requests the Government to keep it informed in this respect.
4. 1038. With regard to the allegations concerning the Higher Electoral Court and the 15-day suspension of wages of Pedro Rudolp Menéndez Rodas, a member of the trade union, the Committee observes that the Government states that the legal proceedings currently under way involve an unresolved incident connected with alleged reprisals (the Office of the Attorney-General of the Nation was cited, rather than the directorate of the Higher Electoral Court). The Committee requests the Government to communicate to it the outcome of the proceedings in connection with the 15-day suspension of wages of trade union member Pedro Rudolp Menéndez Rodas. The Committee further notes that, according to UNSITRAGUA, trade union member Ulalio Jiménez Esteban is working, but that legal action has been initiated to obtain authorization to dismiss him. The Committee also notes that, according to the Government, the legal appeals brought by this worker have been dismissed. With regard to trade union member Víctor Manuel Cano Granados, the Committee notes that, according to UNSITRAGUA, he has brought an appeal against his dismissal before the Supreme Court of Justice and that, according to the Government, the appeal being heard by this court is awaiting signature by the judges. The Committee requests the Government to communicate to it the text of the rulings concerning trade union members Ulalio Jiménez Esteban and Víctor Manuel Cano Granados. At the same time, in view of the absence of information from the Government, the Committee once again requests it to take the necessary steps to ensure that the decision of the employer (the Higher Electoral Court) to dismiss Edgar Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, after they applied to join the Workers’ Union of the Higher Electoral Court, is reviewed and, if it is found that the dismissals were based on anti-union motives, to take measures to ensure that they are reinstated in their posts.
5. 1039. Finally, the Committee requests the Government to send its observations on the new allegations presented by UNSITRAGUA concerning APAMCE and the Fundación Movimiento Fe y Alegría, as well as threats of dismissal and threats to the physical safety of trade union members.

The Committee's recommendations

1. 1040. 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 La Comercial SA, the Committee requests the Government to ensure that trade union member Marco Antonio Estrada López is reinstated in his post (as ordered by the judicial authority) and that the Workers’ Union of La Comercial SA is allowed to enter into negotiations with this enterprise without it concluding a collective agreement with non-unionized workers.
   • (b) With regard to the acts of violence reported at Rafael Landívar University, the Committee regrets these acts. It also stresses that a free and independent trade union movement can only develop in a climate that is free from violence, threats and pressure. The Committee requests the Government to carry out without delay an investigation into the physical and verbal abuse of the members of the Workers’ Union of Raphael Landívar University and to ensure that those responsible are appropriately punished. It requests the Government to keep it informed in this respect.
   • (c) With regard to the allegations concerning the Higher Electoral Court, the Committee requests the Government to communicate to it the text of the rulings handed down in connection with the 15-day suspension of wages of trade union member Pablo Rudolp Menéndez Rodas and with the dismissal of trade union members Víctor Manuel Cano Granados and Ulalio Jiménez Esteban. At the same time, in view of the absence of information from the Government, the Committee once again requests it to take the necessary measures to ensure that the decision of the employer (the Higher Electoral Court) to dismiss Edgar Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, after they applied to join the Workers’ Union of the Higher Electoral Court, is reviewed and, if it is found that the dismissals were based on anti-union motives, to take measures to ensure that they are reinstated in their posts.
   • (d) The Committee requests the Government to send its observations on the new allegations by UNSITRAGUA concerning APAMCE and the Fundación Movimiento Fe y Alegría, as well as threats of dismissal and threats to the physical safety of trade union members.