Interim Report - Report No 350, June 2008

Case No 2341 (Guatemala) - Complaint date: 13-MAY-04 - Closed

Allegations: Interference in the internal affairs of the Trade Union of Portuaria Quetzal; anti-union practices in the education sector; dismissals in the Municipality of Comitancillo (department of San Marcos) in violation of a court reinstatement order; dismissal of a member of the Trade Union of the Supreme Electoral Tribunal; harassment and issuing of a warrant for the arrest of an official of the Education Workers’ Trade Union of Guatemala (STEG); failure by the Crédito Hipotecario Nacional Bank to recognize the results of trade union elections; use of threats and intimidation against the executive committee of the trade union

1. 858. The Committee last examined this case at its November 2006 meeting [see 343rd Report, paras 799–823, approved by the Governing Body at its 297th Session].
2. 859. The Workers’ Trade Union of Guatemala (UNSITRAGUA) submitted new allegations in a communication dated 17 May 2007. The Government sent new observations in communications dated 7 July and 11 December 2006, 16 May, 18 September and 22 November 2007 and 24 January 2008.
3. 860. 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. 861. In its previous examination of the case, the Committee made the following recommendations [see 343rd Report, para. 823]:
2. – With regard to the alleged interference by the Labour Inspectorate in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
3. – With regard to the alleged practice by the Ministry of Education of encouraging subcontracting from the “Fe y Alegria” Movement association through parent associations in order to weaken the trade union, by making renewal of the subcontracted employees’ contracts conditional upon their not joining the union, the Committee once again requests the Government to carry out without delay an independent investigation into the alleged anti-union practices and to send its observations on the subject.
4. – The Committee once again requests the Government to inform it of the outcome of the appeal for trade union immunity that was lodged in connection with the dismissal of 18 employees of the municipality of Comitancillo, as soon as it learns of the decision handed down.
5. – The Committee once again requests the Government to send its observations without delay on the dismissal of Victor Manuel Cano Granados, a member of the Trade Union of the Supreme Electoral Tribunal.
6. – Regarding the harassment of the STEG’s Secretary-General, Jovial Acevedo and, more specifically, the warrant for his arrest following the protests against the Free Trade Agreement, the Committee requests the Government to conduct an inquiry into the matter and to inform it of the outcome.
7. – With regard to the serious allegations concerning death threats and intimidation against the Executive Committee of the Workers Trade Union of the Crédito Hipotecario Nacional (STCHN), and given the contradictions between the allegations of the trade union organization and the statement of the Government, the Committee requests the Government to take the necessary steps to confirm the facts of the threats and to conduct an appropriate investigation, and to keep it informed of the outcome.
8. B. New allegations by UNSITRAGUA
9. 862. In its communication of 17 May 2007, UNSITRAGUA alleged that on 18 December 2006, the Crédito Hipotecario Nacional Bank of Guatemala presented to the trade union of this institution a document communicating to the secretary-general that it did not recognize the union officials elected by the union’s general assembly on 15 December 2006, citing supposed violations of the trade union statutes. The administrative authority established by way of a resolution dated 26 December 2006 that the employer was not legally entitled to challenge the trade union elections, but the bank lodged an appeal for the protection of constitutional rights with the Supreme Court of Justice, which provisionally granted – pending the handing down of the sentence – provisional protection and the suspension of the Ministry of Labour’s resolution, on the grounds that it was likely to cause irreparable damage; on the basis of this provisional decision handed down by the Supreme Court of Justice, on 3 May 2007 the bank refused trade union leave to the union official Héctor Alfredo Orellana Aroche. UNSITRAGUA criticizes the decision of the Supreme Court and the interference by the bank in the internal affairs of the trade union.
10. C. The Government’s new observations
11. 863. In its communications dated 7 July and 11 December 2006, 18 September and 22 November 2007 and 24 January 2008, the Government sent information on the allegations concerning the dismissal of the trade unionist, Víctor Manuel Cano Granados, as well as the threats of dismissal and threats to the physical safety of trade union members in the context of a dispute in the education sector between the trade union, on the one hand, and the Fundación Fé y Alegría and the Fathers’ and Mothers’ Associations, on the other (this information is not included here as, together with the complainants’ allegations, it is examined in this report in the context of an earlier case, No. 2241).
12. 864. The Government states in respect of the alleged threats and intimidation against the executive committee of the Workers Trade Union of the Crédito Hipotecario Nacional Bank (a funeral wreath and a number of death notices were used to threaten the trade union leaders) that the Office of the Special Attorney for Crimes against Journalists and Trade Unionists reported that the Crime Scene Specialists Unit of the Office of the Public Prosecutor went to the scene, without mentioning the involvement of anyone in particular in the threats; the members of the Workers Trade Union of the Crédito Hipotecario Nacional Bank claimed that the manager of the banking institution had made death threats in the human resources office of the bank, in the presence of labour inspector, Héctor García Samayoa; however, the inspector told the Government Procurator’s Office that he had been present at the meeting between the trade union members and the general manager of the bank, and that at no time did the manager make death threats against them. The Government adds that following its inspection of the bank, the General Labour Inspectorate said that it did not consider the threats to have been made and that it had not heard anything in that connection during its inquiries.
13. 865. The Government attaches a ruling dated 25 July 2007 against the Crédito Hipotecario Nacional Bank of Guatemala, imposing a fine requested by the trade union of the equivalent of four minimum monthly wages (4,760.40 quetzals) for having failed to deduct members’ union dues and for not having ceased its policy of coercing trade union members into leaving the trade union.
14. 866. With respect to the alleged warrant for his arrest, and the persecution and harassment targeting Mr Jovial Acevedo, Secretary-General of the Education Workers’ Trade Union of Guatemala (STEG), following protests against the Free Trade Agreement, the Government says that the Sixth Criminal Court of First Instance indicated that the trade union official in question had filed a complaint alleging threats in his capacity of Secretary-General of the STEG and coordinator of the General Assembly of the Teaching Profession. The complaint indicated that he had been coerced and threatened since June 2005, and that the last threat he had received was contained in a document that had come from the national civil police in the 110 confidential information system, which had been referred to in a telephone call from the director. In the document, he is accused of having paid an assassin 50,000 quetzals to murder a teacher at one of the demonstrations organized, ideally a pregnant teacher, in order to raise the profile of the trade union movement. The complaint also indicated that in the same telephone call he was told that it would be better if the demonstrations were not held. According to the complaint, the document was followed up by anonymous death threats on Mr Jovial Acevedo’s mobile phone; although precautionary measures had been called for by the Inter-American Commission on Human Rights, he has not yet received any protection. The Government indicates that the Office of the Attorney-General, which investigated the telephone calls received by Mr Jovial Acevedo, cannot pursue its inquiries because on 13 August 2007, Mr Jovial Acevedo went to the agency of the public prosecutor and withdrew his complaint; the court then ordered that the relevant case be set aside and archived. Furthermore, without any additional details from the complainant organizations (file number, court, etc.), it is not possible to provide a response about the alleged warrant for the arrest of the official in question.

D. The Committee’s conclusions

1. 867. Concerning the allegations relating to the enterprise Portuaria Quetzal and the municipality of Comintacillo, the Committee regrets that the Government has not sent the information requested and reiterates its previous recommendations, reproduced below:
   • – With regard to the alleged interference by the Labour Inspectorate in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
   • – The Committee once again requests the Government to inform it of the outcome of the appeal for trade union immunity that was lodged in connection with the dismissal of 18 employees of the municipality of Comitancillo, as soon as it learns of the decision handed down.
2. 868. As regards the allegations concerning the dismissal of the trade unionist, Víctor Manuel Cano Granados, as well as threats of dismissal and threats to the physical safety of trade union members in the context of a dispute with the Fundación Fé y Alegría and the Fathers’ and Mothers’ Associations, the Committee refers to its earlier conclusions and recommendations on these allegations formulated in the present report in the context of Case No. 2241, a case presented prior to this one.
3. 869. In respect of the alleged harassment of the STEG’s Secretary-General, Mr Jovial Acevedo and, more specifically, the warrant for his arrest following protests against the Free Trade Agreement, the Committee notes the Government’s information that on 13 August 2007, Mr Jovial Acevedo withdrew the complaint he had filed with the judicial authority for coercion and death threats, that the case has consequently been archived and that the Office of the Attorney-General cannot proceed with its inquiries. Furthermore, the Committee notes that the Government has requested information from the complainant organizations regarding the alleged warrant for the arrest of this official (file number, court, etc.) to enable it to reply. The Committee cannot determine whether this warrant is still in force and requests the complainant organizations to send the information requested by the Government.
4. 870. Regarding the allegations relating to death threats and intimidation against the executive committee of the Workers’ Trade Union of the Crédito Hipotecario Nacional Bank, the Committee notes the Government’s statement that: (1) a labour inspector who the members indicated as a witness of the manager’s threats denied that they had occurred; (2) on 25 August 2007, the judicial authority handed down a sentence against the bank, fining it the equivalent of four minimum monthly wages (4,760.40 quetzals, approximately US$615) for failing to deduct members’ union dues and for not ceasing its policy of coercing trade union members into leaving the trade union. The Committee underscores that coercing trade union members into leaving the trade union constitutes a serious violation of Conventions Nos 87 and 98 that consecrate the right of workers to freely join the organization of their own choice and the principle of the adequate protection of this right, and urges the Government to take firm and effective measures to prevent threats against or intimidation of trade unionists.
5. 871. With respect to the new allegations by UNSITRAGUA dated 17 May 2007, the Committee regrets that the Government has not replied and urges it to send its observations without delay on the allegations relating to: (1) the non-recognition by Crédito Hipotecario Nacional Bank of the union officials chosen by the union’s general assembly on 15 December 2006, despite an administrative decision establishing that the employer was not legally entitled to challenge the trade union elections; (2) the provisional decision handed down by the Supreme Court of Justice on an appeal by the bank for the protection of constitutional rights, to suspend the abovementioned administrative decision on a provisional basis; and (3) the bank’s refusal to grant trade union leave to the union official, Héctor Alfredo Orellana Aroche, on the basis of the provisional decision handed down by the Supreme Court of Justice. The Committee also requests the Government to send the text of the ruling handed down by this Court.

The Committee's recommendations

1. 872. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the allegations relating to the enterprise Portuaria Quetzal and the municipality of Comintacillo, the Committee regrets that the Government has not sent the information requested and reiterates its previous recommendations, as follows:
     • – With regard to the alleged interference by the Labour Inspectorate in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
     • – The Committee once again requests the Government to inform it of the outcome of the appeal for trade union immunity that was lodged in connection with the dismissal of 18 employees of the municipality of Comitancillo, as soon as it learns of the decision handed down.
   • (b) As regards the allegations concerning the dismissal of the trade unionist Víctor Manuel Cano Granados, as well as threats of dismissal and threats to the physical safety of trade union members in the context of a dispute with the Fundación Fé y Alegría and the Fathers’ and Mothers’ Associations, the Committee refers to the conclusions and recommendations on these allegations formulated in the present report in the context of Case No. 2241, an earlier case.
   • (c) The Committee requests the complainant organizations to send additional information on the alleged warrant for the arrest of Mr Jovial Acevedo, Secretary-General of the STEG (file number, court, etc.), to enable the Government to communicate its response.
   • (d) The Committee urges the Government to take firm and effective measures to prevent threats against or intimidation of trade unionists.
   • (e) With respect to the new allegations by UNSITRAGUA dated 17 May 2007, the Committee regrets that the Government has not replied and urges it to send its observations without delay on the allegations relating to: (1) the non-recognition by Crédito Hipotecario Nacional Bank of the union officials chosen by the union’s general assembly on 15 December 2006, despite an administrative decision establishing that the employer was not legally entitled to challenge the trade union elections; (2) the provisional decision handed down by the Supreme Court of Justice on an appeal by the bank for the protection of constitutional rights, to suspend the abovementioned administrative decision on a provisional basis; and (3) the refusal to grant trade union leave to the union official, Héctor Alfredo Orellana Aroche, on the basis of the provisional decision handed down by the Supreme Court of Justice. The Committee also requests the Government to send the text of the ruling handed down by this Court.