Rapport intérimaire - Rapport No. 363, Mars 2012

Cas no 2768 (Guatemala) - Date de la plainte: 14-JANV.-10 - Clos

Allegations: Death threats against trade union officers, unilateral amendment by the authorities of the statutes of two trade unions, anti-union discrimination in hiring, impediments to the right to organize through the signature of civil contracts for professional services, and an anti-union dismissal

1. 620. The complaint is contained in communications from the Guatemalan Trade Union, Indigenous and Campesino Movement (MSICG) – acting through its Political Council made up of the General Confederation of Workers of Guatemala (CGTG), the Trade Union Confederation of Guatemala (CUSG), the Altiplano Campesino Committee (CCDA), the National Indigenous, Campesino and People’s Council (CNAICP), the National Front for the Defence of Public Services and Natural Resources (FNL), and the Trade Union of Workers of Guatemala (UNSITRAGUA) – dated 14 January 2010. The complainant organizations sent additional information in communications dated 16 June 2010 and 14 February 2012.
2. 621. The Government sent its observations in communications dated 30 July 2010, and 14 June, 13 September and 24 November 2011.
3. 622. 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 complainants’ allegations

1. 623. In its communication dated 14 January 2010, the MSICG – acting through its Political Council made up of the CGTG, the CUSG, the CCDA, the CNAICP, the FNL and the UNSITRAGUA – reports the following anti-union actions: death threats against trade union officers, unilateral amendment by the authorities of the statutes of two trade unions, anti-union discrimination in hiring, impediments to the right to organize through the signature of civil contracts for professional services, and an anti-union dismissal.

Death threats against trade union officers

1. 624. The complainant organizations allege that, on 1 July 2009, Mr Marvin Mejía and Mr Rolando de Jesús Paz Fajardo, respectively the Secretary-General and the Disputes Secretary of the Workers’ Union of the Office of the Auditor-General, which is affiliated to the CGTG and the MSICG, received death threats in the form of text messages on their mobile telephones. The complainant organizations add that the case has not been investigated even though a report was filed with the Ministerio Público (Public Prosecution Service).

Unilateral amendment by the authorities of the statutes of two trade unions

1. 625. The complainant organizations state that two groups of workers had duly decided to establish the Union of Independent Traders of the Cahabón Municipal Market in the department of Alta Verapaz (SITRACAHABON) and the Trade Union of Workers of the National Institute of Forensic Sciences (SITRAINACIF). At the founding general assemblies, it was decided to set up the trade unions, adopt their draft statutes and elect the members of their interim executive committee. In accordance with legal procedure, notice of the establishment of the two trade unions was given to the General Labour Inspectorate of the Ministry of Labour and Social Welfare, together with an application to the General Labour Director for the recognition of the trade unions as legal entities, for their registration and for the adoption and registration of their statutes.
2. 626. The complainant organizations state that section 2 in fine of the draft statutes literally reads as follows: “shall be considered to be affiliated with the Trade Union of Workers of Guatemala (UNSITRAGUA)”.
3. 627. The complainant organizations state that on 3 August and 7 December 2009, the Ministry of Labour and Social Welfare and the General Labour Director issued decisions DGT PJ 77-2009 and DGT-PJ 84-2009, in which the trade unions were recognized as legal entities, their statutes were adopted and the registration of the trade unions was ordered. However, the passage referring to UNSITRAGUA affiliation was illegally, unilaterally and arbitrarily deleted from the transcript of the statutes in a manner which detracted from the genuine content of the statutes, bearing in mind that the transcript in question is the version used for the abovementioned registration and communicated to the workers along with the decisions.

Anti-union discrimination in hiring: Polygraph tests

1. 628. The complainant organizations state that most enterprises in Guatemala require job applicants in all categories to undergo a polygraph test during which they are subjected to comprehensive questioning about their personal lives, with special emphasis on their trade union affiliation and any involvement in labour disputes. According to the complainants, it is obvious that any workers who have a history of trade union membership or representation before labour courts and trade union bodies are not ultimately selected for hiring. The tests are carried out in the absence of intervention by the labour authorities to guarantee the trade union and labour rights of workers.

Impediments to the right to organize through the signature of civil contracts for professional services

1. 629. The complainant organizations indicate that the State of Guatemala, in its capacity as an employer, has for years been disguising its labour relations or breaking the law in its hiring practices. At present, workers are hired by means of civil contracts for professional services. According to the complainants, the result is that workers are deliberately denied the right to organize and to enjoy all labour rights.
2. 630. The complainant organizations enclose a copy of the statement issued on 4 August 2009 by the Legal Advisory Department of the Ministry of Labour and Social Welfare, in which it is stated that State workers hired under line 029 of the State budget (civil contracts for professional services) “are not workers of the State of Guatemala and therefore are not entitled to form trade unions or enjoy labour rights”. It follows that all workers hired under the abovementioned budget line are denied the right to form trade unions.

Anti-union dismissal

1. 631. The complainant organizations state that Ms Lesbia Guadalupe Amézquita Garnica, who was a member of the MSICG delegation to the 99th Session of the International Labour Conference, accredited by the ITUC, and who was not present in her capacity as an employee of the Friedrich Ebert Foundation (FES), participated by providing technical support to the presentation of Guatemala’s case before the Committee on the Application of Standards on 11 June 2010. During the discussion of the case, the Guatemalan Employers’ delegate referred in his speech to the existence of “external agents”, namely, the MSICG. On 12 June 2010, the manager in charge of FES in Latin America orally informed Ms Amézquita Garnica that FES had decided to dismiss her from her post as the coordinator of the national and regional trade union branch on the grounds, inter alia, that she had worked during the Conference on presenting Guatemala’s case and that this work had jeopardized the work of her office in Guatemala with the Government; according to the complainant organizations, the grounds for her dismissal were not specified in the written notice of dismissal dated 16 June 2010. In its communication dated 14 February 2012, the complainant organization adds that the date of formal dismissal of 16 June 2010 was acknowledged by the FES during the audience that took place on 14 November 2011 before the First Labour and Social Assistance Court. Furthermore, the FES requested during the audience on 30 January 2012 that criminal proceedings be initiated against the MSICG leader.

B. The Government’s reply

Death threats against trade union officers

1. 632. In its communication dated 30 July 2010, the Government states that the Ministry of Labour and Social Welfare asked the Prosecutor’s Office of the Public Prosecution Service for information on the alleged constant death threats delivered by means of text messages to the mobile telephones of trade unionists Mr Marvin Mejía and Mr Rolando de Jesús Paz Fajardo, and that the Prosecutor’s Office stated that the trade unionists in question had authorized it to shelve the complaint on the grounds that there was insufficient information on the persons who might have been involved.

Unilateral amendment by the authorities of the statutes of two trade unions

1. 633. In its communication dated 13 September 2011, the Government states that the passage referring to the UNSITRAGUA affiliation of the trade unions was deleted because the trade unions in question did not clearly indicate the federation with which they wished to be affiliated, in the light of the current problematic situation in which two federations wish to have the same name, and in order to avoid any chance of the trade unions appearing to be part of a federation other than the one to which they wished to belong.

Anti-union discrimination in hiring: Polygraph tests

1. 634. Regarding alleged anti-union actions taken by enterprises against job applicants in all categories and involving polygraph tests, the Government is transmitting single copies of the General Labour Inspectorate’s reports on the cases brought to its attention. The reports show that most of the cases are still unresolved while others were referred for conciliation. In its communication dated 24 November 2011, the Government specifies that the General Labour Inspectorate, acting through its inspection section, processed seven cases in 2010 that related to complaints about polygraph tests including anti-union questions, and concerned private security and industrial enterprises. Six cases filed between January and June 2011 are being processed by inspectors.

C. The Committee’s conclusions

1. 635. The Committee notes that, in this case, the complainant organizations allege death threats against trade union officers, unilateral amendment by the authorities of the statutes of two trade unions, anti-union discrimination in hiring, impediments to the right to organize through the signature of civil contracts for professional services, and an anti-union dismissal.

Death threats against trade union officers

1. 636. The Committee notes that the complainant organizations allege that, on 1 July 2009, Mr Marvin Mejía and Mr Rolando de Jesús Paz Fajardo, respectively the Secretary General and the Disputes Secretary of the Workers’ Union of the Office of the Auditor-General, which is affiliated to the CGTG and the MSICG, received death threats in the form of text messages on their mobile telephones, and that the case has not been investigated even though a complaint has been lodged with the Public Prosecution Service. The Committee also notes that the Government states that the Prosecutor’s Office of the Public Prosecution Service stated that the trade unionists in question had authorized it to shelve the complaint on the grounds that there was insufficient information on the persons who might have been involved, and the case had therefore been shelved. While noting this information, the Committee emphasizes that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 44].

Unilateral amendment by the authorities of the statutes of two trade unions

1. 637. The Committee notes that the complainant organizations state that two trade unions (the Union of Independent Traders of the Cahabón Municipal Market (SITRACAHABON) and the Trade Union of Workers of the National Institute of Forensic Sciences (SITRAINACIF) were set up in 2009, and that it was decided at both founding assemblies to set up the trade union, elect the members of the interim executive committee and adopt the draft statutes, of which section 2 in fine included the following passage “shall be considered to be affiliated with the Trade Union of Workers of Guatemala (UNSITRAGUA)”. The Committee notes that, according to the complainant organizations, the Ministry of Labour and Social Welfare and the General Labour Director unilaterally amended these statutes by deleting the abovementioned passage while disregarding the fact that the statutes had been adopted by founding assemblies.
2. 638. The Committee notes that the Government states that the passage referring to the UNSITRAGUA affiliation of the trade unions was deleted because the trade unions in question did not clearly indicate the federation with which they wished to be affiliated, in the light of the current problematic situation in which two federations wish to have the same name, and in order to avoid any chance of the trade unions appearing to be part of a federation other than the one to which they wished to belong. The Committee recalls that the drafting by the public authorities themselves of the constitutions of central workers’ organizations constitutes a violation of the principles of freedom of association, and that amendments to the constitution of a trade union should be debated and adopted by the union members themselves [see Digest, op. cit., paras 374 and 381]. The Committee emphasizes that any workers’ organization should have the right to join the federation or confederation of its own choosing. Consequently, the Committee requests the Government to take the necessary measures to ensure that the statutes of the two trade unions mentioned above include the reference to their affiliation with (the new or original) UNSITRAGUA and to consult them in order to determine which of the two federations is the one with which they wish to be affiliated, and to keep it informed in this respect.

Anti-union discrimination in hiring: Polygraph tests

1. 639. The Committee notes that the complainant organizations allege that most enterprises in Guatemala require job applicants in all categories to undergo a polygraph test and answer questions about their personal lives, with special emphasis on their trade union affiliation and any involvement in labour disputes, and emphasize that such tests are used to avoid hiring workers who have been members of a trade union or made representations before labour courts and trade union bodies. The Committee also notes the Government’s statement to the effect that the institution responsible for ensuring compliance with the law is the General Labour Inspectorate, of which the inspection section processed seven cases in 2010 that related to complaints about polygraph tests including anti-union questions and concerned private security and industrial enterprises, and six cases filed between January and June 2011, currently being processed by inspectors.
2. 640. The Committee expresses its deep concern at the seriousness of the allegations concerning issues that affect people’s private lives, and emphasizes that protection from anti-union discrimination in hiring must be fully guaranteed, in keeping with Article 1 of Convention No. 98. Furthermore, legislation should allow the possibility to appeal against discrimination in hiring, i.e. even before the workers can be qualified as “employees” [see Digest, op. cit., para. 784]. The Committee expresses its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations, and therefore requests the Government to indicate the conclusions reached and actions taken by the authorities as a result of the reports of the use of polygraphs for anti-union purposes.

Impediments to the right to organize through the signature of civil contracts for professional services

1. 641. The Committee notes that the complainant organizations state that: (1) the State of Guatemala, in its capacity as an employer, has for years been disguising its labour relations or breaking the law in its hiring practices; (2) at present, workers are hired by means of civil contracts for professional services (State budget line 029); and (3) as a result, workers are deliberately denied the right to organize and to benefit from all labour rights. The Committee regrets that the Government has failed to provide information on this subject. However, the Committee wishes to emphasize that it has already, on a number of occasions, examined the compliance of those contract types with the principles of freedom of association. The Committee reiterates its previous recommendations and emphasizes that, in keeping with Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing; workers also enjoy the guarantees provided in Convention No. 98 against acts of anti-union discrimination. Therefore, the Committee once again urges the Government to fully respect Conventions Nos 87 and 98, and in particular to guarantee the trade union rights of the many workers contracted under “line 029” (of the State budget).

Anti-union dismissal

1. 642. The Committee notes that the complainant organizations state that: (1) Ms Lesbia Guadalupe Amézquita Garnica, who was a member of the MSICG delegation to the 99th Session of the International Labour Conference, accredited by the ITUC, participated by providing technical support to the presentation of Guatemala’s case before the Committee on the Application of Standards on 11 June 2010; (2) she was not present in her capacity as an employee of the FES; (3) on 12 June 2010, a manager in charge of FES in Latin America informed Ms Amézquita Garnica of the decision to dismiss her from her post as the coordinator of the national and regional trade union branch on the grounds that she had worked during the Conference on presenting Guatemala’s case and that this work had jeopardized the work of her office in Guatemala with the Government; (4) the communication dated 16 June 2010 and informing Ms Amézquita Garnica of her dismissal did not specify the reason for the dismissal; and (5) the FES requested during the audience that took place on 20 January 2012 that criminal proceedings be initiated against the MSICG leader.
2. 643. The Committee observes that neither the Government nor the FES has sent information on this allegation. The Committee requests the Government to send without delay its observations on this matter, including the comments of concerned parties including the FES, and to indicate whether Ms Amézquita Garnica has lodged a complaint in relation with these events. The Committee also requests the Government to provide information concerning the criminal proceedings allegedly requested by the FES.

The Committee’s recommendations

1. 644. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regarding the unilateral amendment by the authorities of the statutes of two trade unions, the Committee requests the Government to take the necessary measures to ensure that the statutes of the two trade unions mentioned above include the reference to their affiliation with (the new or original) UNSITRAGUA, to consult them in order to determine which of the two federations is the one with which they wish to be affiliated, and to keep it informed in this respect.
   • (b) Regarding the alleged instances of discrimination in hiring, and while expressing its deep concern at the seriousness of the allegations concerning issues that affect people’s private lives, the Committee expresses its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations, and therefore requests the Government to indicate the conclusions reached and actions taken by the authorities as a result of the reports of the use of polygraphs for anti-union purposes.
   • (c) Regarding the failure to recognize trade union rights as a result of the signature of civil contracts, the Committee urges the Government to fully respect Conventions Nos 87 and 98, and in particular to guarantee the trade union rights of the many workers contracted under “State budget line 029”.
   • (d) Regarding the dismissal of Ms Lesbia Guadalupe Amézquita Garnica, the Committee requests the Government to send without delay its observations on this matter, including the comments of concerned parties including the FES, and to indicate whether Ms Amézquita Garnica has lodged a complaint in relation with these events. The Committee also requests the Government to provide information concerning the criminal proceedings allegedly requested by the FES.