Report in which the committee requests to be kept informed of development - Report No 340, March 2006

Case No 2339 (Guatemala) - Complaint date: 01-APR-04 - Closed

Allegations: The complainant alleges: (1) the dismissal of Ms. Mari Cruz Herrera, a member of the USTAC trade union, in violation of the collective agreement in force and the possibility of dismissals of workers hired on the basis of “line 029” (of the state budget) in violation of Conventions Nos. 87 and 98; (2) the possibility that 40 workers, most of them members of USTAC, would be left without employment as a result of privatization through the contracting out of several of the services of the Directorate General of Civil Aviation; (3) the dismissal of union members Emilio Francisco Merck Cos and Gregorio Ayala Sandoval for participating as observers in the negotiation of the draft collective agreement with the Ministry of Agriculture, Cattle-raising and Food

862. The complaints were made in a communication from the Trade Union of Workers in Civil Aviation (USTAC) dated 1 April 2004 and in a communication from the Union of Workers in the Ministry of Agriculture, Cattle-raising and Food (SITRAMAGA) dated 20 February 2005. USTAC provided additional information in a communication dated 25 May 2004. The Government sent its observations in communications dated 25 April, 5 and 26 July, and 22 September 2005.

1. 863. 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. The complainants’ allegations

1. 864. In its communications of 1 April and 25 May 2004, the Trade Union of Workers in Civil Aviation (USTAC) alleges that on 31 December 2003, the Directorate General of Civil Aviation (La Aurora Airport) dismissed Ms. Mari Cruz Herrera for the sole reason that she was a member of the trade union and participated in union activity, violating article 13 of the collective agreement on working conditions. The joint committee mentioned in the collective agreement and the labour inspectorate both ruled in favour of the union member (the report by the labour inspectorate is attached in an annex) but the employer took no notice of the recommendations to reinstate the dismissed worker to her post. USTAC also alleges that all workers hired on the basis of “line 029” (of the state budget) are threatened with dismissal for any reason, including those in violation of Conventions Nos. 87 and 98. In addition, USTAC is concerned about the way in which attempts are being made to privatize some services of the Directorate General of Civil Aviation by contracting them out, which would leave 40 workers, most of whom are union members, without employment. USTAC also makes reference to cases of sexual harassment and the dismissal of three pregnant workers, but without making apparent any link to the exercise of trade union rights.
2. 865. In its communication of 20 February 2005, the Union of Workers in the Ministry of Agriculture, Cattle-raising and Food (SITRAMAGA) alleges that on 18 July 1998 the general assembly of the union approved the draft collective agreement on working conditions and appointed delegates Mr. Mario Roberto Contreras Cetina, Mr. Julio Ronaldo Rodas Oroszco and Mr. José Daniel Avalos Ramos as its representatives to the direct negotiations, and gave them ad referendum authority. As the negotiations were not advancing and there was beginning to be negative speculation about the negotiators, particularly regarding their integrity and reputation, on 27 September 1998 the general assembly decided to appoint Emilio Francisco Merck Cos and Gregorio Ayala Sandoval as observers to the direct negotiations. On 18 October 1998, as it was not possible to negotiate the collective agreement directly, the general assembly agreed to bring a socio-economic collective action before the competent labour judge; later the Fifth Judge of Labour and Social Services of the First Economic Zone of Guatemala took on the case and decreed that neither party could take any reprisals against the other and that no contract could be terminated without his authorization. Nonetheless, SITRAMAGA maintains that on 24 November 1998, Ministry authorities drew up two reports accusing Mr. Emilio Francisco Merck Cos and Gregorio Ayala Sandoval of abandoning their posts and on 20 January 1999 they were dismissed without following the procedure as set out in the law, that is, without presenting charges to them or giving them a hearing to present the punishments that they considered appropriate, in accordance with the civil service law and the collective agreement on working conditions that regulates employer-worker relations within the Ministry of Agriculture, Cattle-raising and Food.
3. 866. SITRAMAGA adds that on 24 February 1999 it was reported to the Fifth Labour Judge that Mr. Emilio Francisco Merck Cos and Mr. Gregorio Ayala Sandoval had been dismissed without the due administrative process and without legal authorization and, principally, as an anti-union reprisal for their role as observers to the negotiations appointed by the general assembly; as a result of this report, on 25 February 1999, the Fifth Labour Judge ordered the immediate reinstatement of the men, with the same economic and working conditions. However, the Ministry of Agriculture, Cattle-raising and Food appealed against the order and, surprisingly, on 31 May 1999 the Third Chamber of the Court of Appeal upheld the appeal and revoked the order for reinstatement given by the Fifth Labour Judge. In the light of such a miscarriage of justice the workers presented an appeal for protection of their constitutional rights (amparo) before the Supreme Court of Justice but unfortunately and incredibly, amparo was denied, due to an error in the appeal, without consideration of the fact that the union leaders concerned had no charges made against them, which was the basis of their claim for amparo. A new appeal was presented to the Constitutional Court, which denied amparo and confirmed the decision of the Supreme Court of Justice. SITRAMAGA has not sent the text of the rulings handed down in this case.
4. B. The Government’s reply
5. 867. In its communications of 25 April, 5 and 26 July, and 22 September 2005, the Government stated, as regards the allegations made against the Directorate General of Civil Aviation, that 98 per cent of the technicians who maintain the equipment in the control tower and centre (telecommunications and radar including the tower and radar operators, known as air-traffic controllers), are hired under budget line 029 (technical/professional services). According to rule II of the manual of the Office of the Auditor General and the National Civil Service Office: “A contract created under budget line 029 – other remuneration of temporary staff – does not create a labour relationship between the parties, so payment for services is not for any post or employment at public expense”. Therefore they are not qualified as workers or public employees so they do not have the right to organize. The Trade Union of Workers in Civil Aviation (USTAC) has recruited members who are employed under that budget line, promising to defend and secure their contracts, in many cases misleading people by taking advantage of their lack of knowledge about the laws regulating this right. As regards the contracting out of services to certain companies, this happened under the last two governments; if services were contracted out – which at the moment they are not – it would be done in such a way as to cause as little harm to the working class as possible. On the other hand, it is possible that the dismissed employees mentioned in the complaint were people who provided their services under budget line 029, in which case they were not dismissed but their contracts were simply not renewed; Ms. Beatriz Eugenia Calvo Pérez, then head of human resources, no longer provides her services to this department as her contract was rescinded.
6. 868. Regarding the allegations made by the organization SITRAMAGA, the Government states that Mr. Emilio Francisco Merck Cos and Mr. Gregorio Ayala Sandoval were dismissed because they were absent from work, did not provide any justification whatsoever and did not have the relevant permission from their immediate superior. Even if it is true that these men were nominated as observers in the direct negotiations for the collective agreement on working conditions, which was being negotiated at the time, they could not do anything that would result in their not fulfilling their duties as public employees. Absenting themselves from their work (for more than three weeks) was considered reason enough to dismiss them without responsibility of the Ministry of Agriculture, Cattle-raising and Food, as indicated in the Law on Unionization and Regulation of Strikes by State Workers in article 4, paragraph (c), third sub-paragraph (c)(1); and the Civil Service Law in article 76.
7. 869. The Government adds that Mr. Gregorio Ayala Sandoval, after having been dismissed in November 1998, was contracted again in March 2003, as a second worker operative. In addition, the Ministry of Agriculture, Cattle-raising and Food negotiated and signed a collective agreement on working conditions with the Union of Workers in the Ministry of Agriculture, Cattle-raising and Food (SITRAMAGA), which is still in force. The Government notes that this shows that it has made serious efforts to ensure freedom of association and attaches documents giving evidence of the absence from work of
8. Mr. Merck Cos and Mr. Ayala Sandoval.

C. The Committee’s conclusions

1. 870. The Committee observes that in this case the complainant alleges: (1) the dismissal of Ms. Mari Cruz Herrera, a member of the USTAC trade union, in violation of the collective agreement in force and the possibility of dismissals of workers hired on the basis of “line 029” (of the state Budget) in violation of Conventions Nos. 87 and 98; (2) the possibility that 40 workers, most of them members of USTAC, would be left without employment as a result of privatization through the contracting out of several of the services of the Directorate General of Civil Aviation; (3) the dismissal of union members Emilio Francisco Merck Cos and Gregorio Ayala Sandoval for participating as observers in the negotiation of the draft collective agreement with the Ministry of Agriculture, Cattle-raising and Food.
2. 871. As regards the alleged dismissal of Ms. Mari Cruz Herrera for being a member of the trade union USTAC and participating in union activities, the Committee notes that, according to the complainant, this dismissal was made in violation of the collective agreement and both the joint committee established by the collective agreement and the labour inspectorate had ruled in favour of the union member. However, the Committee notes that the labour inspectorate undertook action to conciliate the parties and indicated the union member’s right to have recourse to the tribunals, in accordance with the report sent in annex by USTAC. According to that report, the employer’s representative is committed to make efforts to find possibilities of reinstatement in the Civil Service; lastly, the report of the labour inspectorate shows that the union member concerned had been contracted under “line 029” (of the state budget). The Committee takes note of the Government’s statements regarding this type of contract that it “does not create a labour relationship between the parties, so payment for services is not for any post or employment at public expense. Therefore they are not qualified as workers or public employees so they do not have the right to organize”.
3. 872. In this regard, the Committee reminds the Government that, according to Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing; workers also enjoy the guarantees provided in Convention No. 98 against acts of anti-union discrimination.
4. 873. Therefore, the Committee urges the Government to fully respect Conventions Nos. 87 and 98, and in particular to guarantee the freedom of association of the many workers contracted under “line 029” (of the state budget) and to take measures to reinstate union member Mari Cruz Herrera to her post in accordance with the agreement made with the employer’s representative before the labour inspectorate, especially given that the current system does not allow that worker, a union member, any right to freedom of association. The Committee requests the Government to keep it informed in this respect.
5. 874. Regarding the alleged possibility that 40 workers, most of them members of USTAC, could be left without employment as a result of privatization through contracting out several of the services of the Directorate General of Civil Aviation, the Committee points out that this allegation was made by USTAC in its communications of 1 April and 25 May 2004 and that since then no new communications have been received from USTAC confirming that possibility. Therefore, unless the complainant can provide new information, the Committee will simply draw attention to the principle that the Committee can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff-reduction process, the Government did not consult or try to reach an agreement with the trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935]. Also, the Committee believes that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations, without giving preference to proceeding by decree and ministerial decision [see Digest, op. cit., para. 936].
6. 875. Therefore, the Committee requests the Government to duly consult the trade union organization USTAC in any restructuring or privatization process in the Directorate General of Civil Aviation.
7. 876. Regarding the allegation of the dismissal of union members Mr. Emilio Francisco Merck Cos and Mr. Gregorio Ayala Sandoval for participating as observers in the negotiation of the draft collective agreement with the Ministry of Agriculture, Cattle-raising and Food, the Committee notes that, according to the Government, they were absent from work for more than three weeks, did not give any justification whatsoever and did not have the permission of their immediate superior. The Committee notes that the Government states that Mr. Gregorio Ayala Sandoval was later contracted again in the Ministry of Labour and that a collective agreement with the trade union was signed. The Committee notes the complainant’s indication that, apart from the court of first instance, all the other courts, including the Constitutional Court, ruled against both union members and that they were nominated as observers to the collective bargaining by the general assembly of the union. In order to examine the allegations with all the elements, and taking into account that representatives of the employer must have known about the participation of both union members in the collective bargaining, the Committee requests the Government and the trade union SITRAMAGA to send the text of all rulings regarding the dismissal of union members Mr. Emilio Francisco Merck Cos and Mr. Gregorio Ayala Sandoval.

The Committee's recommendations

1. 877. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to fully respect Conventions Nos. 87 and 98 and to guarantee the freedom of association of the many workers contracted under “line 029” (of the state budget) and to take measures to reinstate union member, Mari Cruz Herrera, to her post in accordance with the agreement made with the employer’s representative before the labour inspectorate, especially given that the current system does not allow that worker, a union member, any right to freedom of association. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to duly consult the trade union organization USTAC in any restructuring or privatization process in the Directorate General of Civil Aviation.
   • (c) The Committee requests the Government and the trade union SITRAMAGA to send the text of all rulings regarding the dismissal of union members Mr. Emilio Francisco Merck Cos and Mr. Gregorio Ayala Sandoval.