Rapport intérimaire - Rapport No. 362, Novembre 2011

Cas no 2708 (Guatemala) - Date de la plainte: 20-AVR. -09 - Clos

Allegations: Interference by the authorities in the internal affairs of the Guatemalan Workers’ Trade Union (UNSITRAGUA)

1. 1098. The complaint was presented by the Movement of Trade Unions, Indigenous Peoples and Agricultural Workers of Guatemala (MSICG) represented by the following organizations: the Altiplano Agricultural Workers’ Committee (CCDA), the General Confederation of Workers of Guatemala (CGTG), the Unified Trade Union Confederation of Guatemala (CUSG), the National Trade Union and People’s Coordinating Body (CNSP), the National Front for the Defence of Public Services and Natural Resources (FNL) and the Guatemalan Workers’ Trade Union (UNSITRAGUA), in a communication dated 20 April 2009. The International Trade Union Confederation supported the complaint in communications sent on 27 August 2009 and 17 February 2010.
2. 1099. The Government sent its observations in a communication dated 14 June 2011.
3. 1100. As proposed by the Committee on the Application of Standards at the International Labour Conference in June 2010, an ILO mission visited Guatemala on 9–14 May 2011, and received additional information from the Government (Ministry of Labour and Social Welfare) and the social partners (UNSITRAGUA (the original organization)).
4. 1101. 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 complainant’s allegations

1. 1102. In a communication dated 20 April 2009, the complainant organization states that on 12 December 2008 UNSITRAGUA (the original organization) held an election assembly to elect the members of its national leadership for the period 22 December 2008–21 December 2010. During these elections, Daniel Eduardo Vásquez Cisneros, the international relations coordinator, and Julia Amparo Lotán Garzona, the assistant financial coordinator, were not re-elected. The MSICG indicates that one of the reasons for this was that the two trade union officials had awarded themselves salaries by creating new posts for their own benefit, without the agreement of the board of coordinators or the approval of the assembly of representatives or the UNSITRAGUA general assembly.
2. 1103. Furthermore, the complainant organization indicates that, on 23 December 2008, when the new board of coordinators and sub coordinators took up their duties, the board decided to do away with these new posts, which had been created to benefit certain officials within the organization, without the approval of the board of coordinators or any consultations with the various decision-making bodies within UNSITRAGUA. As a result, keeping the posts would involve sacrificing a significant percentage of UNSITRAGUA’s trade union activities. Daniel Eduardo Vásquez Cisneros and Julia Amparo Lotán Garzona were informed of this decision and, in spite of the irregular manner in which they had awarded themselves salaries, and in compliance with Guatemalan legislation, the two trade union representatives were paid all the benefits to which they were entitled under current labour legislation.
3. 1104. According to the complainant organization, certain sums of money had been placed in the hands of the abovementioned trade union members, for the purpose of implementing the organization’s trade union activities, as well as the administrator passwords for the organization’s official website and email account, and property belonging to the organization. On being informed of the board’s decision, the two trade union officials proposed to retain the salaries which they had unilaterally awarded themselves, without the approval of the UNSITRAGUA leadership (owing to a shortage of available funds and the irregular manner in which the salaries had been awarded). Although the trade union members had agreed to provide information on activities carried out, liquidate the funds they had been allocated and return the passwords for the email account or administrator password for the federation’s website, as well as property belonging to the organization, they failed to do so.
4. 1105. The complainant organization indicates that on 6 January 2009, the trade union members appeared at the headquarters of the organization, together with a notary, in order to establish evidence of constructive dismissal. They gained unauthorized access to the organization’s headquarters, in order to carry out their investigations. As it was not possible to call a labour inspector at that time, and given the risk of the notary including false information in the case file they were drafting, UNSITRAGUA officials decided to ask the national civil police to accompany the two agents, in order to verify that there was no violence involved when the trade union members were requested to leave the headquarters. Subsequently, the board of coordinators was called before the General Labour Inspectorate to establish the facts surrounding the alleged constructive dismissal. The board stated that Daniel Eduardo Vásquez Cisneros and Julia Amparo Lotán Garzona had served as trade union officials, that they had not been re-elected, and that they had been paid all the relevant employment-related benefits for the period during which they had been entitled to a salary. The complainant organization states that, in the meantime, the two trade union members had used the organization’s email account and website to make defamatory remarks about the organization, and some of its officials.
5. 1106. The complainant organization adds that, during the second half of February 2008, UNSITRAGUA learned, by unofficial means, that an application process had been launched to establish a trade union federation with the same trade union name, and that the Ministry of Labour and Social Security, in spite of the fact that it had recognized UNSITRAGUA as a trade union partner for over 20 years, had failed to notify the organization of this fact, thereby blocking its access to the corresponding legal remedies. According to the complainant organization, the process of establishing a parallel trade union organization – a move instigated by Daniel Eduardo Vásquez Cisneros and Julia Amparo Lotán Garzona, as part of a strategy against the organizations belonging to the Movement of Trade Unions, Indigenous Peoples and Agricultural Workers of Guatemala (MSICG), and of efforts to create a pro-Government trade union confederation – had been launched by four of the trade unions affiliated to UNSITRAGUA. UNSITRAGUA (the original organization) then decided to establish a federation with the same trade union name, in order to safeguard its own identity.
6. 1107. The complainant organization stresses that, having failed to notify UNSITRAGUA that an application process had been launched to register its trade union name, and given the existence of certain procedural flaws relating to the process of establishing a parallel trade union federation, the Ministry of Labour and Social Security – instead of following the letter of the law by rejecting the application to register a trade union federation which had failed to attract a minimum of four active trade unions, as required under the provisions of the Guatemalan Labour Code – gave the applicant the opportunity to bring on board additional trade unions, in spite of the fact that the regulations governing the process of establishing a trade union organization are immutable. The Ministry of Labour and Social Security maintained this position in spite of the fact that both UNSITRAGUA (the original organization) and the complainant organization had provided proof of procedural irregularities and requested that it rectify its course of action, bringing it in line with the law. Furthermore, although UNSITRAGUA application has met all the relevant legal requirements, it still remains unregistered.
7. 1108. The complainant organization states that, on 3 April 2009, the members of the board of coordinators and sub coordinators of UNSITRAGUA were informed that a number of cheques issued from the accounts into which the employers deposited their salaries had bounced, as had a number of cheques issued by the organization. The organization contacted the banks in question regarding the reason for the rejection, and was informed that a precautionary order had been issued by the First Chamber of the Labour and Social Security Court to freeze the organization’s accounts – as part of the ordinary labour proceedings launched by Daniel Eduardo Vásquez Cisneros claiming employment benefits for the whole period he had served as a UNSITRAGUA official. The plaintiff had also called for restrictions on the movements of all the officials of the federation, in order to prevent the organization from taking part in any international events to which it may have been invited. This measure financially paralyzed UNSITRAGUA (the original organization), damaging the development of its trade union activities and had a direct impact on the members of its national leadership and their families, as the measures involved completely freezing all salaries.
8. 1109. The complainant organization indicates that, faced with this situation, UNSITRAGUA (the original organization) petitioned the First Chamber of the Labour and Social Security Court to lift the order to freeze the organization’s accounts, providing evidence – in addition to the negative impact of the order on the trade union and its members – that Daniel Eduardo Vásquez Cisneros did not hold the status of a worker, but had instead served as a UNSITRAGUA official. A trade union official only received a salary from UNSITRAGUA during 2008. Furthermore, evidence was provided that the money owed for that period had already been paid out and received by the complainant. Nevertheless, the labour court refused to lift the order, and maintained its hostile stance towards UNSITRAGUA’s trade union activities, trade union officials and their families.
9. 1110. The complainant organization stresses that it is obvious that both the Ministry of Labour’s tacit encouragement of “trade union parallelism”, targeting UNSITRAGUA (the original organization), and measures to deliberately freeze the organization’s accounts, depriving its officials and their families of their means of support, constitute direct interference by the Government, favouring a parallel application from an organization wishing to establish a trade union federation, as part of a specific strategy to impede UNSITRAGUA’s trade union activities and promote the establishment of a pro-Government trade union organization.

B. The Government’s reply

1. 1111. In its communication dated 14 June 2011, the Government stated that the General Labour Directorate does not interfere with the internal affairs of trade unions, federations or confederations in Guatemala. The differences between the two groups claiming ownership of the name UNSITRAGUA resulted from a conflict between the members and former members of those organizations.
2. 1112. For its part, the General Labour Directorate indicates that the organization registered under the name of Trade Union Federation UNSITRAGUA submitted an application to establish a trade union federation on 28 January 2009, while the second application (submitted by UNSITRAGUA (the original organization)) was submitted on 3 February 2009, namely six days after the first. The first application was registered under No. 08-2009, and the second under No. 10-2009. Having examined the applications and corresponding documents, the General Labour Directorate concluded that due process had taken place and that all the legal requirements stipulated in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and articles 206–234 of the Labour Code, had been met.

C. The Committee’s conclusions

1. 1113. The Committee notes that in the present case the complainant organization alleges the interference of the authorities (the Ministry of Labour and Social Security and the First Chamber of the Labour and Social Security Court) in the internal affairs of UNSITRAGUA (the original organization), showing favouritism towards one of the blocs produced by a split within the organization in 2008. According to the allegations, both groups claim the trade union name UNSITRAGUA and probably property belonging to the trade union.
2. 1114. The Committee takes note of the statements made by the complainant organization, according to which: (1) on 12 December 2008, UNSITRAGUA (the original organization) held an election assembly to elect members of its national leadership for the period 22 December 2008–21 December 2010; (2) Daniel Eduardo Vásquez Cisneros, the international relations coordinator, and Julia Amparo Lotán Garzona, the assistant financial coordinator, were not re-elected (according to the allegations, the two trade union members had awarded themselves salaries by creating new posts for their own benefit, without the agreement of the board of coordinators, the assembly of representatives, or the UNSITRAGUA general assembly); and (3) although both trade union members had control of certain sums of money, the site administration passwords for UNSITRAGUA’s official website and email account, as well as property belonging to the organization, no goods, funds or information were ever returned to the organization.
3. 1115. With regard to the alleged interference of the Government in the internal affairs of UNSITRAGUA, the Committee notes that, according to the allegations, the abovementioned trade unionists (Daniel Eduardo Vásquez Cisneros and Julia Amparo Lotán Garzona) arrived at the headquarters of the organization with a notary, in order for the notary to establish evidence of constructive dismissal. Given this situation, the UNSITRAGUA leaders requested the police to be present when they asked the two trade union members to leave the headquarters, in order to verify that no violence had been used. According to the allegations, the Ministry of Labour and Social Security failed to inform the organization that certain trade unions affiliated to UNSITRAGUA (the original organization) had applied to register a trade union federation with the same trade union name. Given the situation, UNSITRAGUA (the original organization) decided to establish a federation under its own trade union name, in order to safeguard its identity. However, in spite of the fact that it had met the legal requirements to establish a federation, it has yet to be registered by the authorities (it is worth noting here that UNSITRAGUA, although it had, in practice, been active for many years, had never previously requested to be registered).
4. 1116. The Committee notes that, according to the complainant organization, the Ministry of Labour and Social Security did not act in accordance with the law, and instead supported the parallel process initiated by Daniel Eduardo Vásquez Cisneros and Julia Amparo Lotán Garzona. Furthermore, the First Chamber of the Labour and Social Security Court ordered the organization’s accounts to be frozen, as a precautionary measure within the framework of the ordinary labour proceedings launched by Daniel Eduardo Vásquez Cisneros, to claim employment-related benefits for the entire period of time he had served as a UNSITRAGUA official. He had also requested restrictions to be placed on the movements of UNSITRAGUA officials, in order to prevent the trade union organization from taking part in any international events to which they may have been invited. These measures had financially paralyzed UNSITRAGUA (the original organization), damaging the development of its trade union activities and having an adverse, indirect impact on its national officials and their families. The same labour court also rejected a request for the order to freeze the organization’s accounts to be lifted, in spite of the fact that UNSITRAGUA (the original organization) had provided proof that payments had been made to, and received by, the trade union member in question.
5. 1117. The Committee also notes that the Government indicates that the General Labour Directorate does not interfere in the internal affairs of trade unions, federations or confederations in Guatemala. The General Labour Directorate has stated that, in this case, the differences between the two groups claiming ownership of the name UNSITRAGUA resulted from a conflict between the members and former members of the trade union. Following its examination of the applications and related proceedings, the General Labour Directorate concluded that due process had taken place and that all the legal requirements had been met.
6. 1118. However, the Committee notes that, according to the complainant organization, the alleged interference of the Government is demonstrated in the tacit encouragement by the Ministry of Labour of “trade union parallelism”, targeting UNSITRAGUA (the original organization), and the deliberate order to freeze the funds of the organization and thereby deprive the officials and their families of their means of subsistence. In this regard, the Committee recalls that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 859]. The Committee urges the Government to send its detailed observations relating to the alleged interference and to send all court rulings issued in relation to the legal action taken by Daniel Eduardo Vásquez Cisneros.
7. 1119. With regard to the split which took place within UNSITRAGUA, the Committee notes the information gathered during the mission proposed by the Committee on the Application of Standards at the International Labour Conference in June 2010, which took place in May 2011, was conducted by a former high-level government official (former Prosecutor-General of Colombia) and, inter alia, dealt with the issue of registration and the failure to include UNSITRAGUA and other organizations in the National Tripartite Committee. In particular, the Committee notes that, according to the mission report: (1) UNSITRAGUA (the original organization) is not opposed to the registration of Trade Union Federation UNSITRAGUA and, according to certain authorities in the Ministry of Labour, the registration process involving UNSITRAGUA (the original organization) is still ongoing; (2) UNSITRAGUA (the original organization) is currently involved in the process of establishing a trade union confederation; and (3) the Government has excluded it from all bipartite or tripartite dialogue forums. The Committee notes that, in its view, all representative trade union organizations should sit on the National Tripartite Commission. The fact that UNSITRAGUA (the original organization) is not registered cannot be used as a reason to exclude it, as other organizations on the Commission are also unregistered.
8. 1120. The Committee also notes that according to the same report, the Ministry of Labour and Social Security stated that: (1) the first application has precedence, and the registration process lasted six months because it was necessary to examine all the documents submitted; (2) the case filed by UNSITRAGUA (the original organization) remains open but has not been active for a year and a half; and (3) a good solution would be to begin the process from scratch, addressing the legal defects which have been identified, mainly relating to the name of the organization and the possibility of ensuring that both trade unions and individual workers can directly join the federation. Finally, the Committee notes that the Trade Union Federation UNSITRAGUA (registered organization) has stated that: (1) the split in the federation was necessary, as UNSITRAGUA had lost its trade union nature, mainly as a result of foreign funding, and was controlled by a group of officials from the legal office; (2) in 2010, another split occurred, and certain officials left to join the complainant organization; and (3) it cannot be ruled out that the two blocs may reunite, as trade union unity is vital. In view of this information, the Committee requests the Government to keep it informed of developments in the situation relating to the registration of UNSITRAGUA (the original organization) and to ensure that the organization is registered without hindrance.
9. 1121. With regard to information indicating that the Government has excluded UNSITRAGUA (the original organization) from all bipartite or tripartite dialogue forums, in particular the National Tripartite Commission, the Committee notes that the conclusions of the mission report on social dialogue indicate that the mission drew the attention of the authorities to the need to include the excluded organizations in the abovementioned Commission, as tripartite dialogue cannot adequately meet its objectives without the participation of a vital part of the trade union movement. In light of these conditions, the Committee requests the Government to take the necessary measures to include UNSITRAGUA (the original organization) in the National Tripartite Commission and to keep it informed in this regard.

The Committee's recommendations

1. 1122. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to communicate its detailed observations with regard to the alleged interference of the Government in the internal affairs of UNSITRAGUA (the original organization). Furthermore, the Committee requests the Government to send the court rulings relating to the legal proceedings launched by Daniel Eduardo Vásquez Cisneros.
   • (b) With regard to the split within UNSITRAGUA, the Committee requests the Government to keep it informed of developments in the situation relating to the registration of UNSITRAGUA (the original organization) and to ensure that this organization is registered without let or hindrance.
   • (c) With regard to the allegation that the Government has excluded UNSITRAGUA (the original organization) from all bipartite or tripartite dialogue forums, especially the National Tripartite Commission, the Committee requests the Government to take all necessary measures to include the organization in the abovementioned National Tripartite Commission and to keep it informed in this regard.