Report in which the committee requests to be kept informed of development - Report No 351, November 2008

Case No 2295 (Guatemala) - Complaint date: 28-AUG-03 - Closed

Allegations: The complainant organization’s allegations concern failure to comply with orders for the reinstatement of dismissed trade unionists and anti-union dismissals

1. 861. The Committee last examined this case at its November 2007 meeting and submitted an interim report to the Governing Body [see 348th Report, paras 711–723]. The Government sent its observations in communications dated 9 January and 4 February 2008.
2. 862. 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. A. The complainants' allegations

1. 863. At its November 2007 meeting the Committee made the following interim recommendations regarding the allegations presented by the complainant organization [see 348th Report, para. 723]:
   • (a) The Committee expects that the 29 workers belonging to the Workers’ Trade Union of Golán SA who were dismissed will be reinstated in the very near future, in accordance with the judicial rulings to that effect. The Committee requests the Government to keep it informed in this respect.
   • (b) Regarding the alleged dismissal of 50 workers, recruited on an occasional basis for the sugar cane harvest, from the Palo Gordo Agricultural, Industrial and Refining Company SA, the Committee urges the Government to inform it without delay whether the dismissed workers initiated court proceedings, and to inform it of the outcome of any such proceedings.

B. The Government’s reply

1. 864. In its communication dated 9 January 2008, the Government states that of the workers of the Palo Gordo Agricultural, Industrial and Refining Company SA who, according to the allegations, were dismissed during the sugar cane harvest, 23 have failed to bring any court action or make any complaint to the labour inspectorate. The Government states that the enterprise gave them severance pay on the day of dismissal.
2. 865. In its communication dated 4 February 2008, the Government states that the Justice of the Peace of the municipality of Villa Canales in the department of Guatemala stated that, of the 25 workers who lodged complaints against the enterprise Golán SA, 14 attempted to withdraw their complaints, indicating that they were no longer interested in pursuing the case. However, it should be pointed out that the court rejected the withdrawals as inadmissible, given that the labour judge’s order to reinstate the workers had been disregarded and the action could therefore not be dropped or withdrawn. Likewise, all the workers concerned were notified of the rulings and judgements issued by this court so that they might be kept up to date regarding the judgements; none of them, however, has appeared during the case, nor have they presented themselves before the court to follow up the case.
3. 866. As regards the non-compliance of the representatives of the enterprise Golán SA, the judge stated that, on 7 May 2007, a public hearing was held, during which Mr Marco Antonio Ramos Pontaza was acquitted. The case of three representatives found to be in contempt of court for failure to appear before the judge is still ongoing. They were formally summoned but their whereabouts are unknown and they no longer work for the enterprise.

C. The Committee’s conclusions

1. 867. The Committee notes that the present complaint refers to the dismissal of workers belonging to the Workers’ Trade Union of Golán SA whose reinstatement has been repeatedly ordered by the judicial authority since 2001 [see 336th Report, para. 470 ] and to the dismissal in November 2003 of workers belonging to the trade union by the Palo Gordo Agricultural, Industrial and Refining Company SA [see 334th Report, para. 588].
2. 868. The Committee notes that, according to the judicial authority’s report, transmitted by the Government: (1) the number of workers at the enterprise Golán SA who took legal action against their dismissal is 25, of whom 14 attempted to withdraw their complaints (a move rejected by the judicial authority); (2) all the workers were notified of the legal rulings but failed to appear before the court to follow up the case; (3) there is a case ongoing against three representatives of the enterprise, who have been found in contempt of court and whose whereabouts are unknown (they no longer work for the enterprise), for non-compliance with the reinstatement order issued at the time by the judicial authority.
3. 869. The Committee notes the lack of interest on the part of the dismissed workers in continuing with the case in order to obtain reinstatement. Nevertheless, the Committee must emphasize that the allegations refer to dismissals carried out in 2001 and to successive reinstatement orders repeatedly issued by the judicial authority but disregarded in practice, as can be seen from previous examinations of the case. Under these circumstances, the Committee cannot fail to note that the anti-union discrimination protection system has failed in a case that dates back to 2001. It draws the Government’s attention to the fact that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed, and that the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 817 and 818]. The Committee requests the Government to keep it informed regarding the case against three former representatives of the enterprise Golán SA concerning non-compliance with judicial reinstatement orders. The Committee observes that, independently of this process, there is an obligation on the part of the company to reinstate the dismissed workers in application of repeated judicial orders.
4. 870. As regards the dismissal in 2003 of workers belonging to the trade union during the sugar cane harvest by the Palo Gordo Agricultural, Industrial and Refining Company SA, the Committee notes that, according to the Government, the workers dismissed lodged no complaints with the labour inspectorate, and made no claims before the judicial authority; furthermore, on the day of their dismissal they received severance pay. Given the length of time that has passed and the fact that the workers did not lodge complaints and accepted the severance pay, the Committee will not pursue its examination of this allegation.
5. 871. In general, the Committee expresses its deep concern at the excessive slowness in administering justice and requests the Government, in consultation with the most representative organizations of workers and employers, to take the necessary measures without delay to remedy the current situation of slowness, as a lengthy delay in concluding proceedings concerning the reinstatement of dismissed trade unionists is tantamount to a denial of justice and therefore of trade union rights.

The Committee's recommendations

1. 872. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expresses its deep concern at the excessive slowness in administering justice and requests the Government, in consultation with the most representative organizations of workers and employers, to take the necessary measures without delay to remedy the current situation of slowness, as a lengthy delay in concluding the proceedings concerning the reinstatement of dismissed trade unionists is tantamount to a denial of justice.
   • (b) The Committee requests the Government to keep it informed regarding the case against three former representatives of the enterprise Golán SA concerning non-compliance with judicial reinstatement orders. The Committee observes that, independently of this process, there is an obligation on the part of the company to reinstate the dismissed workers in application of repeated judicial orders.