Interim Report - Report No 350, June 2008

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

1. 842. The Committee last examined this case at its March 2007 meeting, when it presented an interim report to the Governing Body [see 344th Report, approved by the Governing Body at its 298th Session (March 2007), paras 1024–1040].
2. 843. The Government sent further observations in communications dated 16 May, 6 June and September 2007.
3. 844. 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. 845. At its March 2007 meeting, the Committee made the following recommendations [see 344th Report, para. 1040]:
2. – 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.
3. – 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.
4. – 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.
5. 846. The allegations made by UNSITRAGUA in relation to the last of these recommendations, sent in its communication of 29 May 2006 and contained in paragraphs 1030 and 1031 of the 344th Report, are reproduced below:
6. – 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.
7. – 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.
8. B. The Government’s new observations
9. 847. In its communications of 16 May, 6 June and September 2007, the Government indicates that the Public Prosecutor’s Office for Human Rights has not received any complaints concerning physical and verbal abuse against members of the Workers’ Union of Rafael Landívar University. The Office of the Special Investigator into Crimes against Journalists and Trade Unionists of the Department of the Public Prosecutor indicates that members of this union brought charges, which were dismissed by the respective court.
10. 848. With regard to the allegations relating to the Fundación Movimiento Fe y Alegría – Fathers’ and Mothers’ Associations (threats of dismissal and threats to the safety of trade union members), the Government indicates that the Public Prosecutor’s Office for Human Rights indicated that it had not received any complaint in this respect. The Office of the Special Investigator into Crimes against Journalists and Trade Unionists of the Department of the Public Prosecutor commented that the information provided by UNSITRAGUA is not adequate to identify the complaint that was made, according to the union, and the Government therefore requests UNSITRAGUA to provide further information so that more effective investigations can be conducted (number of the case, name of the complainant, etc.).
11. 849. With regard to the trade union leader Víctor Manuel Cano Granados, the Government has provided the ruling of the Amparo Chamber of the Supreme Court of Justice (in relation to an appeal against a decision by the Labour and Social Insurance Appeal Court setting aside the reinstatement order issued by the court of first instance). It adds that the Supreme Court ruling has not been challenged by the plaintiff. Under the terms of the ruling, there is no evidence in the case of this union leader (who alleged that he had been dismissed without justification and without prior authorization by the courts) of the existence of a measure of reprisal against him or the trade union movement and “the decision to dismiss him was based on a fault that he committed which, in the view of the employer (the Higher Electoral Court), was the reason for the dismissal, with the consequence that it was in compliance with section 4(c) of Decree No. 71-86 of the Congress of the Republic respecting termination of employment – the existence of a “justified reason for dismissal” – when the guarantees of the right to defence and due process are respected”.

C. The Committee’s conclusions

1. 850. The Committee notes that the pending allegations in the present case relate to: (a) verbal and physical abuse against the members of the Workers’ Union of the Rafael Landívar University by the university authorities; (b) the dismissal of members of the Workers’ Union of the Higher Electoral Court and the 15-day suspension of one member; and (c) the allegations made by UNSITRAGUA concerning the Fathers’ and Mothers’ Associations of the Fundación Movimiento Fe y Alegría (the associations are alleged to hire teachers and administrative staff outside the context of an employment relationship to prevent workers joining the union) and threats of dismissal and to the safety of trade union members who referred a collective dispute to the judicial authorities and provided essential information during the investigation carried out by the labour inspectorate, the report of which was not communicated to the union.
2. 851. In relation to the allegations concerning verbal and physical abuse by the university authorities against members of the Workers’ Union of the Rafael Landívar University, the Committee notes that according to the Government the charges brought by the union members were rejected by the courts. The Committee requests the Government to provide a copy of the respective court ruling.
3. 852. With regard to the allegations relating to the Higher Electoral Court, the Committee notes that the Government has provided the ruling by the Supreme Court of Justice dismissing the amparo proceedings (proceedings for the protection of constitutional rights) filed by trade union member Víctor Manuel Cano Granados in relation to his dismissal, with the indication that the latter has not challenged the ruling. The Committee requests the Government to provide a copy of the ruling by the Labour and Social Insurance Appeal Court relating to the dismissal, as the ruling of the Supreme Court does not indicate the facts which, according to the Court of Appeal, amounted to unjustified dismissal.
4. 853. However, the Committee regrets to note that the Government has not provided information concerning the other pending allegations relating to the Higher Electoral Court; the Committee therefore reiterates its previous conclusions and recommendations and requests the Government to provide copies of the rulings relating to the suspension of two weeks’ pay of the union member Pedro Rudolp Menéndez Rodas and the dismissal of union member Ulalio Jiménez Esteban. Furthermore, in view of the lack of information from the Government, the Committee once again requests it to take measures to review the decision of the employer (the Higher Electoral Court) to dismiss Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar after they sought membership of the union and, if it is found that the dismissals were ordered for anti-trade union reasons, to take measures for their immediate reinstatement.
5. 854. In relation to the allegations concerning the Fathers’ and Mothers’ Associations of the Fundación Movimiento Fe y Alegría, the Committee notes that, according to the allegations: (1) the associations are alleged to hire teachers and administrative staff outside the context of an employment relationship to prevent workers joining the union; and (2) threats of dismissal and physical threats were made against trade union members who referred a collective dispute to the judicial authorities and provided essential information during the investigation carried out by the labour inspectorate, the report of which was not communicated to the union.
6. 855. The Committee notes the Government’s indication that the Public Prosecutor’s Office for Human Rights has not received any complaint concerning such threats and that the Office of the Special Investigator into Crimes against Journalists and Trade Unionists, in view of the inadequacy of the information provided by UNSITRAGUA, is unable to verify whether a complaint was made and therefore requests the communication of the number of the case, name of the complainant, etc.
7. 856. The Committee requests UNSITRAGUA to provide the Government with a copy of the complaint lodged in relation to the threats of dismissal and the threats to the safety of trade union members in the context of the dispute that existed in the teaching sector between the union, on the one hand, and the Fundación Movimiento Fe y Alegría and the Fathers’ and Mothers’ Associations, on the other. Finally, the Committee regrets to note that the Government has not provided replies in relation to the other pending allegations. The Committee accordingly requests the Government to ensure that workers in these institutions are able to freely join the union without intimidation of any type, that the report of the labour inspectorate on violations of trade union rights is furnished to the union and that labour relations are conducted in a climate free from intimidation and violence.

The Committee's recommendations

1. 857. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide a copy of the ruling rejecting the charges of verbal and physical abuse by the university authorities against the members of the Workers’ Union of the Rafael Landívar University.
   • (b) With reference to the allegations relating to the Higher Electoral Court, the Committee requests the Government to provide a copy of the ruling by the Labour and Social Insurance Appeal Court concerning the dismissal of trade union member Víctor Manuel Cano Granados, as the ruling of the Supreme Court does not indicate the facts which, according to the Court of Appeal, amounted to unjustified dismissal.
   • (c) Moreover, noting that the Government has not provided information concerning the other pending allegations relating to the Higher Electoral Court, the Committee therefore reiterates its previous conclusions and recommendations and requests the Government to provide copies of the rulings relating to the 15-day suspension of the wages of the union member Pedro Rudolp Menéndez Rodas and the dismissal of the union member Ulalio Jiménez Esteban. In view of the lack of information from the Government, the Committee also once again requests it to take measures to review the decision of the employer (the Higher Electoral Court) to dismiss Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar after they sought membership of the union and, if it is found that the dismissals were ordered for anti-trade union reasons, to take measures for their immediate reinstatement.
   • (d) The Committee requests UNSITRAGUA to provide the Government with a copy of the complaint lodged in relation to the threats of dismissal and the threats to the safety of trade union members in the context of the dispute that existed in the teaching sector between the union, on the one hand, and the Fundación Movimiento Fe y Alegría and the Fathers’ and Mothers’ Associations, on the other. Finally, the Committee regrets to note that the Government has not provided replies concerning the other pending allegations relating to these organizations. The Committee accordingly requests the Government to ensure that workers in these institutions are able to freely join the union and without intimidation of any type, that the report of the labour inspectorate on violations of trade union rights is furnished to the union and that labour relations are conducted in a climate free from intimidation and violence.