Rapport intérimaire - Rapport No. 342, Juin 2006

Cas no 2295 (Guatemala) - Date de la plainte: 28-AOÛT -03 - Clos

Allegations: Dismissal of trade union members by the Committee for the Blind and Deaf of Guatemala; non-compliance with a legal order for reinstatement and the subsequent revocation by the Appeals of Court of the reinstatement order, in violation of basic procedural guarantees; recognition of trade union representative status of a not-for-profit civil organization, the Trade Unions’ and People’s Action Unit (UASP); anti-union dismissals; delays in registering a trade union organization

518. The Committee last examined this case at its March 2005 meeting [see 336th Report, paras. 466-478]. The Government sent its observations in communications dated 8 and 30 March, 25 April, 15 June, 5 and 26 July and 8 August 2005.

1. 519. 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. 520. At its March 2005 meeting, the Committee made the following provisional recommendations regarding the allegations presented by the complainant organization [see 336th Report, para. 478]:
2. (a) As to the alleged illegitimate nature of the constitution of the Tripartite Committee on International Labour Affairs, the Committee requests the Government to send documentation on the UASP which will make it possible to determine whether it is a trade union organization or not (statutes, affiliated organizations, representativity, activities, etc.).
3. (b) The Committee requests the Government to send without delay its observations on the allegations related to the Quetzal Harbour Company (dismissal of four workers), the non-compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A. company and the process of formation of the Teachers’ Trade Union of Guatemala (SITRAMAGUA).
4. (c) The Committee requests the Government to communicate any decision handed down with regard to the alleged dismissal of 50 workers in the Palo Gordo Agricultural, Industrial and Refining Company S.A..
5. (d) The Committee requests the Government to send its observations on the communication of UNSITRAGUA dated 24 January 2005.
6. (e) As regards the statement made by the complainant organization that the non-compliance with judicial orders is made possible by the fact that, in such cases, the employer faces no more than a small fine, the Committee underlines that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice. The Committee requests the Government to keep it informed on the legislation and the practice in this regard.
7. (f) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views on the questions at issue, as well as those of the enterprises which have not yet communicated information.
8. B. New replies from the Government
9. 521. In its communications dated 8 and 30 March, 25 April, 15 June, 5 and 26 July and 8 August 2005, the Government sends its observations on the various allegations in this case.
10. 522. Regarding clause (a) of the recommendations, referring to the alleged illegality of the composition of the Tripartite Committee on International Labour Affairs, the Government states, in its communication of 8 March 2005, that between 21 October 2004 and 3 March 2005, the Ministry of Labour and Social Welfare sent invitations to Carlos Enrique Díaz López, a member of UNSITRAGUA and appointed member of the Tripartite Committee on International Labour Affairs, but he did not attend any of the meetings. With regard to the sending of the aides-mémoires drafted in each meeting, the Government indicates that the aides-mémoires are sent to all the participants in previous meetings so that they can read them over and make any changes they consider appropriate, but since the member of UNSITRAGUA did not attend any meetings the aides-mémoires were not sent to him.
11. 523. The Government adds that a reply from the UASP indicates that it is a not-for-profit organization outside the trade union movement. The UASP replies that it has been a member of the Tripartite Committee since 1987 without its legitimacy ever having been questioned until now. The UASP was also at one point affiliated to UNSITRAGUA. Traditionally, it is an organization whose members include both trade union organizations and people’s associations. The trade union organizations include teachers, which means that denying UASP the right to participate is tantamount to denying the teachers that right.
12. 524. Regarding clause (b) of the recommendations, which refers to the dismissal of four workers from the Quetzal Harbour Company, the Government observes that the allegations do not mention the names of the dismissed workers. It adds that the membership of the Trade Union of Workers of the Quetzal Harbour Company comprises 587 of the 690 permanent workers. All the members of the executive committee and consultative council of the trade union who benefit from immunity from dismissal work at the company with no problems. In September 2004, a collective agreement was concluded and the workers who left the company did so under a voluntary retirement plan, or because their special contracts had come to an end or been terminated.
13. 525. Regarding the alleged non-compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A., the Government enclosed information from the company indicating that the application for reinstatement referred to was settled in court on 15 March 2002, when it was denied; this ruling was confirmed by the Constitutional Court on 16 October 2002. In its communication of 8 August 2005, the Government adds that case C-2347-05 was referred to the Court of Paz de Villa Canales by the Fifth Court of First Criminal Instance for Drug Trafficking and Crimes against the Environment of the Municipality and Department of Guatemala, following an appeal on grounds of unconstitutionality submitted by Golan S.A.; the appeal was denied, and the ruling was confirmed by the Constitutional Court. On 13 and 26 July 2005, six workers resigned and withdrew their penal and civil action against the company. As regards the other workers, the case is still under way pending a ruling on the alleged refusal of the representatives of the company to reinstate the group of workers who appealed to the First Court of Labour and Social Welfare of the First Economic Zone.
14. 526. Concerning the formation of the Teachers’ Trade Union of Guatemala (SITRAMAGUA), the Government states that the organization was registered on 11 March 2004 under No. 1613, page 008133 of book 20 relating to officials of trade union organizations. The Government encloses a copy of resolution No. 15-2004, and states that the trade union was registered and had been operating without any problem prior to the presentation of the allegations.
15. 527. With regard to clause (c) of the recommendations, concerning the alleged dismissal of 50 workers from the Palo Gordo Agricultural, Industrial and Refining Company S.A., the Government repeats that, according to the company, the workers concerned were recruited on a temporary basis for the sugar cane harvest.

C. The Committee’s conclusions

1. 528. The Committee notes the Government’s observations on some of the allegations that were still pending since the previous examination of the case.
2. 529. Regarding clause (a) of the recommendations, referring to the alleged illegality of the composition of the Tripartite Committee on International Labour Affairs, the Committee observes, first of all, that the allegations concern the communication from the complainant organization dated 24 January 2005 (see clause (d) of the recommendations), which stated that:
3. – without consulting the trade union organizations, the Government approved a new set of regulations for the Committee which is in violations of Conventions Nos. 87 and 144 and appointed to the Committee members of the Trade Unions’ and People’s Action Unit (UASP), which is a civil organization, on the grounds that it was the most representative organization, the purpose being to undermine UNSITRAGUA which was reduced to the status of deputy member of the Committee;
4. – the Government does not send information documents (aides-mémoires) to the members of UNSITRAGUA.
5. 530. The Committee notes the Government’s statement that the representative of UNSITRAGUA, as a member of the Tripartite Committee, was sent a number of communications but that he did not attend any of the meetings; as a result, he was not sent the information documents (aides-mémoires) which are sent only to members who take part in previous meetings so that they can make any changes they consider appropriate. The Committee requests the Government and UNSITRAGUA to explain the difference in the rights of titular and deputy members of the Tripartite Committee. The Committee also requests UNSITRAGUA to explain the reasons for which it did not attend the meeting of the Tripartite Committee. As to the UASP, the Committee notes that, according to the Government, it has been a member of the Tripartite Committee since 1987 because its membership includes a number of trade union organizations such as the teachers’ union. The Government encloses a copy of the notarial Protocol of the constitution of the Trade Unions’ and People’s Action Unit dated 14 February 2002, which was recorded in the civil registry on the same date and attested to the fact that a number of natural persons had decided to establish the association. According to articles 1 and 2 of the Protocol, it is a not-for-profit civil organization whose function is to offer technical, cultural, educational, economic and social support and which focuses on providing trade unions and people’s organizations, on request, with guidance, advice, coordination and assistance in respect of their autonomy, individual and collective rights, decisions and competence. According to article 9, the association consists of a general assembly and an executive board. The Government encloses a list of the members of the association, which include numerous trade union organizations.
6. 531. However, the Committee observes that the trade union nature of the association is not apparent from the documentation sent by the Government, since its purpose would seem to be essentially one of providing advisory services and there are no details as to the trade union activities that it is engaged in. Moreover, the Committee observes that, although the Government, quoting the UASP, states that it has been participating in meetings of the Tripartite Committee since 1987, it was in fact not constituted until 2002. Furthermore, the organization is listed in the civil registry but not in the public registry of trade unions, like other organizations referred to in this case in previous paragraphs.
7. 532. Consequently, in order to determine the legality of the composition of the Tripartite Committee on International Labour Affairs, the Committee requests the Government to indicate the method employed to determine that the said association is the most representative, to explain why the organization is listed in the civil registry and not in the public registry of trade unions, like other trade union organizations in the country, and to outline the trade union functions and activities carried out by the association.
8. 533. Regarding the dismissal of four workers from the Quetzal Harbour Company, the Committee notes the Government’s objection that the complaint does not mention the names of the dismissed workers, and its observation that the membership of the trade union comprises 587 of the 690 workers, that all the members of its executive committee and consultative council benefit from immunity from dismissal and therefore have not been dismissed, that a collective agreement was concluded in September 2004 and that, in any case, the workers who left the company did so under a voluntary retirement plan or had come to the end of their contract. Bearing in mind that the allegations are vague, in so far as they do not mention the names of the dismissed workers, the Committee requests the complainant organization to provide the names of the dismissed workers and to inform it of the circumstances under which they were dismissed.
9. 534. Regarding the alleged non-compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A., the Government states that six workers resigned and withdrew their penal and civil action against the company and that, as regards the other workers, the case is still under way pending a ruling on whether or not the company disobeyed the order to reinstate them. Observing that according to the allegations, which have not been denied by the Government, the reinstatement of the workers was ordered in a judicial ruling, the Committee requests the Government to take the necessary measures to ensure that the company reinstates the dismissed workers immediately, in accordance with the judicial orders, and to keep it informed of developments in the matter.
10. 535. Regarding the formation of the Teachers’ Trade Union of Guatemala (SITRAMAGUA), the Committee notes that, according to the Government, the organization has been registered since 11 March 2004 under No. 1613, page 008133 of book 20 relating to officials of trade union organizations, prior to the presentation of the allegations.
11. 536. With regard to clause (c) of the recommendations, concerning the alleged dismissal of 50 workers from the Palo Gordo Agricultural, Industrial and Refining Company S.A., the Committee notes that the Government repeats information that it provided in previous examinations of the case, to the effect that the workers were recruited on an occasional basis for the sugar cane harvest, but does not refer to any court ruling that may have been handed down in this connection. The Committee requests the Government once again to inform it whether the dismissed workers initiated court proceedings and of the outcome of any such proceedings.
12. 537. The Committee observes that the Government has not sent it any information regarding clause (e) of the recommendations, which refers to UNSITRAGUA’s claim that non-compliance with judicial orders is made possible by the fact that the employer faces no more than a small fine. Recalling once again that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice, the Committee refers this legislative aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 538. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and UNSITRAGUA to explain the difference in the rights of titular and deputy members of the Tripartite Committee. The Committee also requests UNSITRAGUA to explain the reasons for which it did not attend the meeting of the Tripartite Committee.
   • (b) Regarding the alleged illegality of the composition of the Tripartite Committee on International Labour Affairs, the Committee requests the Government to indicate the method employed to determine that the Trade Unions’ and People’s Action Unit (UASP) is the most representative, to explain why the organization is listed in the civil registry and not in the public registry of trade unions, like other trade union organizations in the country, and to outline the trade union functions and activities carried out by the association.
   • (c) Regarding the dismissal of four workers from the Quetzal Harbour Company, the Committee requests the complainant organization to provide the names of the dismissed workers and to inform it of the circumstances under which they were dismissed.
   • (d) Regarding the alleged non-compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A., the Committee requests the Government to take the necessary measures to ensure that the company reinstates the dismissed workers immediately, in accordance with the judicial orders, and to keep it informed of developments in the matter.
   • (e) Regarding the dismissal of 50 workers, recruited on an occasional basis for the sugar cane harvest, from the Palo Gordo Agricultural, Industrial and Refining Company S.A., the Committee requests the Government once again to inform it whether the dismissed workers initiated court proceedings and of the outcome of any such proceedings.
   • (f) Regarding UNSITRAGUA’s claim that non-compliance with judicial orders is made possible by the fact that the employer faces no more than a small fine, the Committee, recalling once again that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice, refers this legislative aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.