Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

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

Effect given to the recommendations of the Committee and the Governing Body

1. 101. At its meeting in March 2007, the Committee requested the Government to ensure that the commitment made by the employer’s representative (General Directorate of Civil Aviation) before the Labour Inspectorate to reinstate trade unionist Ms Mari Cruz Herrera was respected [see 344th Report, para. 77]. The Committee notes that the Government’s reply does not refer to this matter and it therefore reiterates this recommendation.
2. 102. With regard to the dismissal of the trade unionists Mr Emilio Francisco Merck Cos and Mr Gregorio Ayala Sandoval, the Committee took note of the Supreme Court of Justice ruling regarding amparo proceedings (appeal for protection of constitutional rights) and the Constitutional Court ruling, dated 4 July 2000 and 2 April 2001, respectively, in which the amparo appeal was denied on the grounds that the dismissal of the trade unionists was justified because they had been absent from their posts without their employer’s permission. In this context, the Committee recalled that the dismissal of trade unionists for absence from work without the employer’s permission does not appear in itself to constitute an infringement of freedom of association [see 344th Report, para. 78].
3. 103. In relation to the above recommendation, in its communication dated 18 January 2007 (received in June 2007), the Union of Workers in the Ministry of Agriculture, Cattle-raising and Food (SITRAMAGA) describes the aforementioned ruling of the Constitutional Court as political and refers to a previous ruling (on another case), which concludes that, during collective bargaining, the employer is bound by law to obtain judicial authorization to dismiss trade unionists. The union accordingly requests the Committee on Freedom of Association to examine the case and hopes that the authorities will pay compensation to those who were dismissed.
4. 104. In its communication dated 23 July 2007, the Government states that the ruling on the dismissal of the two trade union members cannot be amended or revoked, and that furthermore, in this particular case, all the legal possibilities of redress provided for by law to challenge the ruling have been exhausted and were unsuccessful. In this case, the complainant is seeking to have the ruling revoked by citing a ruling in a similar case, which has been sent as an attachment with the new allegations in this case and maintains that a legal precedent has been set. With regard to these claims, the Government states that, in order to set a legal precedent, a series of judicial rulings has to be made as established by law, whereas, in this case, the complainant refers to only one ruling. According to national legislation, in order to set a legal precedent, three consecutive and identical sentences have to be pronounced and they cannot be retroactive.
5. 105. The Government adds that the rulings handed down by all the country’s courts are in line with the laws in force. The Government therefore rejects the complainant’s claim that the Constitutional Court in this case handed down a political rather than a legal ruling.
6. 106. The Committee notes that, according to the documentation transmitted, the judicial authority initially ordered the reinstatement of the two trade unionists, but in the subsequent proceedings (appeal, amparo) the rulings were different. The Committee notes that the last ruling (Constitutional Court) upholds the previous ruling against reinstatement, but is based on procedural arguments, stating that “if the plaintiffs considered that the reason for their dismissal was unjust, they could, in accordance with the provisions of article 78, have initiated proceedings against their employer in the labour and social welfare courts in order to establish whether or not their dismissal was justified”. The Committee further notes that the rulings state that the trade unionists in question had been “elected as observers in the negotiations that took place directly between the trade union and the authorities” (Ministry of Agriculture) and that “they abandoned their work”. The Committee notes, lastly, that the ruling of the Constitutional Court is final. In these circumstances, given that the dismissal of both trade unionists and their abandonment of their work might have been related to their role as observers in the collective bargaining process, the Committee requests the Government to hold a meeting with the parties concerned in order to examine this matter and to consider the issue of compensation raised by the complainant organization.