Informe provisional - Informe núm. 292, Marzo 1994

Caso núm. 1595 (Guatemala) - Fecha de presentación de la queja:: 05-JUL-91 - Cerrado

1. 555. The Committee already examined this case at its meeting of November 1992 (see 284th Report, paras. 721-737, approved by the Governing Body at its 254th Session (November 1992)), when it reached interim conclusions.
2. 556. Subsequently, the General Centre of Workers of Guatemala (CGTG) made new allegations in a communication dated 12 April 1993.
3. 557. The Government furnished observations in a communication dated 5 November 1993.
4. 558. Guatemala has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 559. At the previous examination of the case by the Committee there remained pending the allegations concerning the assassination of a worker during a labour dispute, obstacles to the establishment of trade union organizations, the dissolution of trade unions by officials, anti-trade union dismissals and the refusal of several enterprises to negotiate collective agreements (see 284th Report, paras. 726, 735, 736 and 737).
2. 560. Specifically, the complainants had alleged the following infringements of trade union rights (see 284th Report, para. 726):
3. - Union of Peasant Workers of La Patria farm: the complainants state that in view of the union's decision to join the CGTG and to take legal action against the undertaking to put a stop to the mass dismissals, the undertaking with the assistance of the national army, repressed the workers, killing one of them on 5 August 1989. The complainants allege that 40 members of the trade union were dismissed;
4. - the Guatemala Fiesta Hotel Workers' Union: the complainants allege that the undertaking refuses to negotiate the collective agreement on conditions of employment, since it maintains that there is no trade union, despite the fact that the union has enjoyed trade union status for seven years. Similarly, they allege that all trade union leaders have been dismissed, and state that even though the courts ordered their reinstatement, the undertaking refuses to comply;
5. - Workers' Union of the Fábrica Pundu SA: the complainants allege that unlawful dismissals have taken place and state that it seems likely that the undertaking will close in the near future which appears like a combined attempt to break up a trade union movement in the "maquila" (in bond) industry, where employers have obstructed the establishment of trade union organizations. In particular, the complainants mention the following undertakings: Sam Agliano and Don San (free trade zone, department of Izabal), Manufacturas Integridad SA, Koram SA, Booco and Cía, Ltda., Diseños Panamericanos SA and Confecciones Isabel SA;
6. - Workers' Union of the El Trapichito farm: the complainants allege that all members of the union have been dismissed. Similarly, they point out that although the courts have ordered the reinstatement of Julian Aguilar Santana, the undertaking refuses to comply;
7. - Workers' Union of the El Naranjo farm: the complainants allege that 55 workers, members of the undertaking's trade union, were dismissed when it tried to join the General Centre of Workers of Guatemala;
8. - the Workers' Union of the Compañía Centroamericana Administradora de Hoteles y Turismo SA, Hotel Ritz Continental: the complainants allege that the undertaking has requested the withdrawal of the union's legal personality and that it has refused to negotiate a collective agreement on conditions of employment;
9. - Union of Automobile and Allied Drivers of Guatemala: the complainants allege that the urban transport companies Unión, Bolívar, EGA, La Fe and Morena, are trying to prevent the establishment of trade union organizations;
10. - the San Antonio Suchitepequez Municipal Workers' Union and the Villa Nueva Municipal Workers' Union: the complainants allege that their unions have been dissolved by municipal officials.
11. 561. The Committee had noted that the Government had either not replied to the allegations or had done so incompletely by merely stating essentially that the trade union organizations mentioned in the allegations were free to appeal at the judicial and administrative levels.
12. 562. In these circumstances, the Committee made the following recommendations (see 284th Report, para. 737):
13. The Committee requests the Government to instigate a judicial inquiry into the alleged murder of a worker on 5 August 1989 at the La Patria farm, when workers were demanding an end to the mass dismissals, and to keep the Committee informed in this regard;
14. As regards Case No. 1595, the Committee emphasizes the seriousness of the allegations and requests the Government to send, without delay, detailed information on each of the many allegations presented regarding anti-union dismissals in various enterprises, the refusal to negotiate collective agreements, restrictions on the establishment of trade union organizations and the dissolution of trade unions by public officials.
15. B. New allegations
16. 563. In its communication of 12 April 1993 the General Central of Workers of Guatemala (CGTG) alleges that although the legal procedures had been initiated several years ago, the Ministry of Labour has still not granted legal personality to the Workers' Union of the Ministry of the Interior, the National Front Trade Union of Street Vendors and the Customs Workers' Trade Union.
17. 564. The CGTG also alleges the dismissal of the Secretary-General of the Trade Union of Bakers of Chiquimula following the lack of action by of the labour inspector, as well as the dismissal of 20 members of the Trade Union of Shipping Workers of Santo Tomás de Castilla in December 1992, who worked in the Santo Tomás de Castilla shipping enterprise (Barrios Izabal Port).
18. 565. Furthermore, the CGTG alleges that the General Inspectorate of Labour did not approve the collective agreement concluded between the Workers' Union of the Autonomous Sports Confederation of Guatemala and this Confederation, alleging that it was not presented within 24 hours of being concluded by the parties. In the same way, the CGTG alleges the dismissal of several officials of the executive committee of the Workers' Union of the San Juan de Dios Hospital and the refusal of the Director of the hospital to reinstate workers dismissed although the Deputy Minister of Labour had accepted their reinstatement.
19. 566. Finally, the CGTC alleges non-compliance with labour legislation by certain enterprises and makes allegations concerning inter-trade union disputes.
20. C. The Government's reply
21. 567. In its communication of 20 October 1993, the Government states that the partial reform of the Labour Code on 10 November 1992 made some improvements for the workers: workers participating in the establishment of a trade union may not be dismissed once notification has been given to the General Inspectorate of Labour; should such workers be dismissed, they must be reinstated within 24 hours and the employer responsible shall be punished with a fine of 1,000 quetzales in addition to the payment of the outstanding wages; the recognition of a trade union is no longer made by "governmental agreement" but by "ministerial resolution" within a period of 20 days following the presentation of the application. Since July 1993, 25 trade unions have been registered and reference is made in particular to some trade unions in the in-bond industry, which are already set up or being set up (although these are not the same trade unions being established in the in-bond industry to which the complainants referred). In the same way, the reformed Labour Code sets up conciliation and arbitration courts on a permanent basis (they were previously set up only in the event of a dispute).
22. 568. The Government adds that some of the disputes presented to the Committee on Freedom of Association are no longer at the administrative stage but before the courts. This is the case with the trade unions in the following enterprises: La Patria Farm, Manufactureras Integridad SA, Koram SA, Booco and Cía, Ltda., Diseños Panamericanos SA, Confecciones Isabel SA as well as the Trade Union of Municipal Workers of Villa Nueva. In the same way, in the case concerning the Guatemala Fiesta Hotel Workers' Union, mediation by the Ministry of Labour has led to a definitive settlement of the dispute and progress to be made in other cases presented to the Committee on Freedom of Association.
23. 569. Furthermore, the Government refers to the allegations concerning ten trade unions and makes the following observations:
24. - Trade Union of Workers of Shipping Enterprises: in a resolution dated 16 August 1993, the trade union was asked to reply to some of the observations, although it has not done so to date;
25. - Trade Union of Bakers: the initial application of this trade union, with headquarters in the department of Chiquimula, was made on 26 November 1992. Some legal problems have arisen although the application is now at the final stage of approval. Measures have been taken to guarantee the job stability of trade union members and in particular officials;
26. - National Front Trade Union of Street Vendors: legal personality was granted and statutes were approved under a resolution of the Ministry of Labour dated 12 August 1993;
27. - Customs Workers' Trade Union: some problems arose and it was necessary to process the application in accordance with the standards contained in the reforms to the Labour Code. In a resolution dated 5 August 1993, No. 1146, the Ministry of Labour recognized the legal personality of the trade union and approved its statutes;
28. - Workers' Union of the Ministry of the Interior: debate has arisen concerning the classification of the 22 secretaries of the departmental offices of the Ministry of the Interior as employees in positions of trust. In an opinion dated 11 October 1993, the Legal Advisor's Office of the General Inspectorate of Labour stated that these workers do have this status because of the functions which they carry out. The trade union may make observations on this opinion;
29. - Workers' Union of the Autonomous Sports Confederation of Guatemala: the collective agreement on conditions of work was signed in April 1993 and presented to the General Inspectorate of Labour the following June. For this reason this office requested that an updated collective agreement be presented;
30. - Workers' Union of the San Juan de Dios Hospital: the matter is now before the labour courts which will be responsible for a final solution.
31. 570. Finally, the Government refers to the guidelines contained in the Government plan 1994-95 concerning wage and labour policies, which include the guarantee of freedom of association and the promotion of collective bargaining; the appointment of an additional 31 labour inspectors to monitor the application of labour legislation; the holding of tripartite seminars and the establishment of tripartite committees to resolve or prevent disputes.

D. The Committee's conclusions

1. 571. The Committee observes that the allegations refer to the assassination of a worker during a labour dispute, the non-recognition of the legal personality of several trade unions, the dissolution of trade unions on the order of officials, obstacles to the establishment of trade union organizations, numerous acts of anti-trade union discrimination and restrictions on collective bargaining.
2. 572. The Committee notes with interest the recent reforms of the Labour Code to improve the guarantee of trade union rights and that in August 1993 legal personality was granted to the National Front Trade Union of Street Vendors and the Customs Workers' Trade Union. The Committee also notes that following the mediation by the Ministry of Labour the labour dispute between the Fiesta Guatemala Hotel and the trade union was finally settled.
3. 573. The Committee also notes that according to the Government the courts have now been seized of the matters contained in the allegations respecting the dismissal of 40 workers who were members of the Union of Peasant Workers of La Patria Farm, measures taken by the in-bond enterprises Manufacturas Integridad S.A., Koram S.A., Booco & Cía. Ltda., Diseños Panamericanos S.A. and Confecciones Isabel S.A., to prevent the establishment of trade unions and the dissolution of the Trade Union of Municipal Workers of Villa Nueva and the dismissal of several officials of the executive committee of the Workers' Trade Union of the San Juan de Dios Hospital, who had not been reinstated in their jobs despite the order issued by the administrative authority. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings initiated in these cases and expresses the hope that the verdicts will be handed down without delay. It also requests, if it is established that the dismissals were motivated by legitimate trade union activities, that the workers in question be reinstated in their jobs.
4. 574. Furthermore, the Committee notes that according to the Government some of the questions raised by the complainants are at the administrative stage for various reasons. Thus the administrative procedure respecting the dismissal of the Secretary-General of the Trade Union of Bakers of Chiquimula is now at the final stage; the Trade Union of Shipping Workers of Santo Tomás de Castilla (Barrios Izabal Port) has not yet transmitted to the Ministry of Labour the additional information requested; and as regards the non-granting of legal personality to the Workers' Trade Union of the Ministry of the Interior, the Ministry of Labour is awaiting the observations of the trade union on the opinion issued by the legal advisers' office of the Labour Inspectorate that its members include 22 government secretaries who have the status of employees of trust. The Committee requests the Government to keep it informed of the administrative decisions in these matters and it hopes that they will be issued without delay.
5. 575. As regards the allegation concerning the non-approval by the General Inspectorate of Labour of the collective agreement concluded between the Autonomous Sports Confederation of Guatemala and the workers' union of this institution, the Committee notes that the Government states that the non-approval was due to the fact that the collective agreement was sent to the administrative authority two months after it had been concluded. In this respect, the Committee notes that collective agreements should not be subject to approval by the administrative authority whose competence in any case should be limited to ensuring respect for minimum legal standards in the respective collective agreements. The Committee therefore requests the Government to guarantee the immediate application of the above-mentioned collective agreement.
6. 576. Finally, the Committee deplores that the Government has not replied to the other allegations, which concern: the assassination of a worker on 5 August 1989 during a labour dispute in the La Patria Farm and the trade union (in its previous examination, the Committee had already requested the holding of a judicial inquiry and to be informed of its outcome, a request which it repeats on this occasion); the existence of illegal dismissals and the imminent closing down of the Fábrica Pundo S.A. to break up the trade union movement; measures taken in the in-bond enterprises San Agliano and Don Sam to prevent the establishment of trade unions; the dismissal of all the members of the Workers' Union of El Trapichito Farm; the dismissal of 55 members of the Workers' Union of El Naranjo Farm; the request for the withdrawal of the legal personality of the Workers' Union of the Compañia Centroamericana Administradora de Hoteles y Turisom, S.A. (Hotel Ritz Continental) by the enterprise and the refusal of the enterprise to negotiate a collective agreement; attempts by the urban transport companies Unión, Bilívar, EGA, La Fe and Morena to prevent the establishment of trade union organizations; and the dissolution of the San Antonio Suchitepequez Municipal Workers' Union and the Villa Nueva Municipal Workers' Union by municipal officials. The Committee urges the Government to send its observations on these allegations as a matter of urgency. The Committee also expresses its concern at the many allegations of anti-trade union discrimination, obstacles to the establishment of trade unions, delays in the granting of legal personality or even the dissolution or attempted dissolution of trade unions by public officials or enterprises.
7. 577. Given the number and nature of the pending allegations, the Committee urges the Government to speed up the processing of complaints by trade unions and to ensure fully and effectively the right of workers to set up organizations of their own choosing to guarantee that no worker is a victim of acts of anti-trade union discrimination, such as dismissal, because of trade union membership or legitimate trade union activities, and to guarantee that no trade union organization is dissolved or deprived of its legal personality because of its trade union activities.

The Committee's recommendations

1. 578. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again requests the holding of a judicial inquiry into the death of a worker on 5 August 1989 during a labour dispute between the La Patria Farm and the trade union and to be informed of the outcome.
   • (b) The Committee expresses its concern at the many allegations of anti-trade union discrimination, obstacles to the establishment of trade unions, delays in the granting of legal personality or even the dissolution of trade unions by officials or enterprises.
   • (c) The Committee deplores that the Government has not sent observations on a number of the allegations and urges it to speed up the processing of complaints by trade unions and to ensure fully and effectively the right of workers to set up organizations of their own choosing, to guarantee that no worker is the victim of acts of anti-trade union discrimination, such as dismissal, for trade union membership or legitimate trade union activities and to guarantee that no trade union organization is dissolved or deprived of its legal personality because of its trade union activities. The Committee also urges the Government to reply as a matter of urgency to the allegations on which it has not sent observations.
   • (d) The Committee requests the Government to keep it informed of the administrative or judicial decisions handed down on the many allegations to which the Government has referred and which have been placed before these bodies and hopes that these decisions will be issued without delay. The Committee also requests, if it is established that the dismissals were due to legitimate trade union activities, that the workers in question be reinstated in their jobs.
   • (e) The Committee requests the Government to guarantee the immediate application of the collective agreement concluded between the Autonomous Sports Confederation of Guatemala and the trade union of this institution. The Committee emphasizes that collective agreements should not be subject to approval by the administrative authority, whose competence in any case should be limited to ensuring respect for minimum legal standards in the respective collective agreements.