2008 Annual Survey of violations of trade union rights - Guatemala
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Guatemala, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8e1b.html [accessed 10 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Anti-union violence continues unabated in Guatemala, with murders, kidnappings, attacks, and raids on union premises and union leaders' homes. On 15 January, Pedro Zamora, General Secretary of STEPQ was assassinated. Marco Tulio Ramírez of the SITRABI union was murdered in September, and there were countless threats and acts of intimidation. When workers tried to form new unions the employers, in both the private and state sectors, responded by dismissing or transferring the leaders. The Olga Maria banana plantation sought to wipe out the union by every possible means.
Trade union rights in law
The Constitution and the Labour Code recognise workers' freedom of association and all workers have the right to form and join trade unions, including public sector employees, with the exception of members of the security forces.
Workers have the right to organise and bargain collectively, provided the union represents more than 25 per cent of workers in an enterprise, a requirement considered excessive by the ILO. Unions are also allowed to affiliate to international confederations.
The law provides for a system of labour and social welfare courts to rule on violations of the Labour Code. The export processing zones are not exempted from applying the labour laws.
Restrictions: The 2001 Labour Code reforms removed some of the legal restrictions on workers' rights. Others remain however:
The requirement for a person to be of Guatemalan origin and to be actively employed by the company in order to be elected as a trade union leader (Articles 220 and 223 of the Labour Code).
The obligation to provide written consent in order to form a union, while employers merely need to hold a meeting.
The sanction of one to five years' imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that contribute to the country's economic development.
The requirement for compulsory arbitration, without the possibility of recourse to strike action, in public services which are not "essential" in the strict sense of the term, public transport and services related to fuel, and the prohibition of solidarity strikes.
Right to strike: Workers are allowed to strike provided they have the support of 51 percent of the workforce in that company. The right is more restricted for people employed in the public sector. Although the law only provides an exception to the right to strike for essential public services, the list of those services is longer than the one used by the ILO. As a result, all education, postal, transport, transport generation and energy workers are denied the right to strike.
Trade union rights in practice and Violations in 2007
Background: Guatemala's election year was marked by bloodshed. There were 46 political assassinations during the campaign. After two rounds of voting on 9 September and 4 November, Álvaro Colom of the National Hope and Unity Party (Partido Unidad Nacional de la Esperanza – UNE) was declared the winner, and was due to take office at the beginning of January the following year. Widespread violence and impunity continue to characterise a country that has still not found social peace.
Continuous anti-union discrimination: Anti-union discrimination takes different forms. One is when the company or institution transfers unionised workers from one workplace to another, to a different post and to locations far from the organisational core. In many cases, the trade unionists' former posts are filled by contract workers who are not covered by the collective agreement. To break up the union, employers offer improvements in pay or working conditions as incentives to disaffiliate.
Strategies to prevent the creation of trade unions: The exercise of trade union rights remains severely hampered by hostility towards the trade unions and the failings of the legal system.
Companies use all possible means of preventing the creation of trade unions, either by making dismissals before the union is formed or by filing writs.
Another technique used by companies to avoid their obligations is to change their names, even where there has been no change of ownership. Big companies such as Chiquita Brands have set up a network of independent producers and disguise the employment relationship by means of sub-contracting, creating legal uncertainty as to the identity of the employer and cutting the formal ties of the employment relationship.
In State institutions the employment relationship has been altered by the use of commercial contracts for tasks of a permanent nature carried out by public servants. Workers in this situation first have to prove that there is an employment relationship before they can create a union.
Insufficient labour inspections, a weak judicial system and impunity: The country has a poor record of labour inspection. According to workers, the inspectors are more likely to persuade them to renounce their rights than seek to protect them, and often give employers' advance warning of their visits.
Guatemala's judicial system in general is on the verge of collapse. There have been many cases in which judges have been attacked, and some have been forced into exile, while others have simply been murdered. The labour courts are overrun with applications for the reinstatement of workers, and cases can drag on for over ten years. The majority of dismissals are groundless, which is why the courts order reinstatement. Employers tend to ignore court rulings, however, and the courts do nothing to make sure that their own decisions are respected.
Problems with organising in the export processing zones (EPZs): In the EPZs or "maquiladoras" (assembly plants), labour law enforcement is particularly weak. Of the 200 maquilas that were in operation during the year, only three had trade unions. Yet they are not exempt by law from complying with labour legislation. However, there is a lack of political will which is reflected by the labour authorities' inability to control the failings and violations in these sectors. The Labour Ministry and other institutions are hence protecting the multinational companies instead of protecting the workers.
The mobility of such investment is one of the things making it impossible to set up trade unions in the EPZs. In 2007, 37 factories were closed down, leaving 17,000 people out of work.
Assassination of Pedro Zamora: On 15 January, Pedro Zamora, General Secretary of the dockworkers' union, Sindicato de Trabajadores de la Empresa Portuaria Quetzal (STEPQ), was brutally murdered. His two sons were with him, and one of them was slightly injured in the attack. Zamora had been under surveillance and followed for some time. One year earlier his union had complained of threats and intimidation to the Ministry of Public Affairs and the Office of the Human Rights Ombudsman, in vain.
Zamora had been leading a campaign to stop the government's plans for the privatisation of the port of Quetzal, proposing instead a programme of investment and modernisation to increase efficiency and to secure decent employment for the port's workforce. He had challenged the Port Authority over numerous violations of labour rights, the dismissal of nine workers and its refusal to negotiate a collective agreement. On 12 February, after a joint international trade union mission by the International Transport Workers' Federation (ITF) and the ITUC to STEPQ and Puerto Quetzal, the nine workers illegally dismissed by the Port Authority in October 2006 were reinstated in their old posts on the same salary, after a tough four month struggle. Despite a major international campaign, no-one has so far been prosecuted for Zamora's assassination.
Threats against STEPQ leaders: Two days after the assassination of Pedro Zamora, two STEPQ leaders, Oscar Giovanni González Donado and Lázaro Noé Reyes Matta, the organisation's minutes and agreements and organising secretaries, respectively, reported receiving several death threats against them and their families by telephone.
Employer interference in trade union democracy: The Banco de Crédito Hipotecario (National Mortgage Bank) workers' union has faced a persistent campaign of aggression, persecution and attempts to undermine their legitimacy by management.
The union began the year confronted with the challenge made by the Bank's board of directors against the leaders elected at the union's General Assembly on 15 December 2006.
Despite the intervention of the Office of the Human Rights Ombudsman and the Ministry of Labour and Social Welfare in the workers' favour, the Bank's management ordered the suspension of the leaders' trade union leave, on the basis of a writ issued by the Supreme Court. In doing so it contravened national law on trade union immunity and the terms of the collective agreement.
Dismissals and transfers of trade union leaders to break up new organisations: On 5 February the National Town and Country Workers' Union, CTC, submitted all the documentation for the legal formation of the Estofela S.A. Maquiladora Company Workers' Union to the Ministry of Labour and Social Welfare. The following day, 6 February, the company began to dismiss its workers.
In the middle of the year, the Education Ministry began legal proceedings in order to dismiss five leaders of the Education Ministry's General Workers' Union SIGETRAMINEDUC. As there were no grounds for their dismissal, this move was considered to be an act of straightforward trade union repression.
On 9 July the Ministry of Public Affairs transferred the principal leaders of the union created just over one month earlier to offices far away. The transferred leaders – José Alejandro Reyes Canales, General Secretary, Javier Adolfo de León Salazar, Work and Disputes Secretary, Axel Vinicio Lemus Figueroa, Finance Secretary and Erick Daniel Santos Barrera, a member of the Consultative Council – lodged an appeal with the Council of the Ministry of Public Affairs, and won. They had been threatened with sanctions for abandoning their work and with prosecution if they did not present themselves immediately at the workplaces they had been illegally transferred to. They had also been assigned shifts in their new jobs, and disciplinary procedures had been instituted against them.
The Attorney General of the Ministry of Public Affairs suspended the transfer of one of the leaders following his resignation from his trade union post and his disaffiliation from the trade union. On 20 and 21 August, another seven members of the union's Executive Committee were also transferred to different posts.
On 10 December the employers at the Hotel Crowne Plaza dismissed the top leaders of the company's workers' unión, registered just three days earlier. The workers dismissed were Alfredo Sunun Maas, Elder Danilo Ávalos López, Marco A. Bámaca Gómez and Marisel Delgado Urbina. Their case was presented to the Ministry of Labour and Social Welfare on the 13th. Faced with a visit by the General Labour Inspectorate, the company prevented the dismissed workers from entering the premises. Reprisals, intimidation, harassment and a wave of persecution against unionised workers continue.
Murder, intimidation and death threats against trade union leaders: On 6 February unidentified individuals shot and killed Aníbal Ixcaquic Mendoza and Norma Sente de Ixcaquic of the National Street Vendors Union of Guatemala in the centre of the Guatemalan capital.
It was reported that on two occasions in February the General Secretary of the Union of Civil Aviation Workers, STAC, Imelda López, found the window of the union's car that she drives had been opened. In March, it was reported that the managing directors of the Civil Aviation Authority were carrying out an inquiry into personal data. Management promised to revise the questions asked in the investigation, as its own representatives recognised that they did not comply with their institution's own policies (some questions concerned workers' personal loans for example). The persecution and threats continued despite the complaints made to the competent authorities.
At the beginning of October, Francisco Antonio López, the Labour and Disputes Secretary of the Union of Workers of the National Civil Service Office (SONSEC) received a series of death threats against him and his family and faced other forms of intimidation.
Rounds of gunfire from heavy calibre weapons were fired at the home of Carlos Enrique Mancilla Garcia, Labour and Disputes Secretary of the CUSG (Confederación de Unidad Sindical de Guatemala) at midnight on 31 December. Fortunately, no-one was hurt.
Murder of banana union leader after a long history of anti-union violence: In July, members of the Guatemalan army arrived in military vehicles and illegally raided the headquarters of the Izabal Banana Workers' Union (SITRABI). They interrogated those present, demanding the names of the union leaders and other information about the union.
Marco Tulio Ramírez Portela, Culture and Sports Secretary of the SITRABI, was gunned down by heavy calibre weapons on 23 September. The murder took place at 5.45 in the morning as he was leaving his home for work and was intercepted by men wearing balaclavas who blocked his path and killed him in front of his wife and children.
Marco Tulio was the brother of the organisation's General Secretary, Noé Antonio Ramírez Portela, who was later subjected to persecution and harassment in the form of surveillance and gunshots.
SITRABI also reported that people on motorbikes drove around the banana plantations owned by BANDEGUA, a subsidiary of the multinational DEL MONTE FRESH, at night, firing shots from heavy calibre weapons in an intimidating manner. The company's security guards did not intervene.
Destruction of banana union clear proof of the anti-union strategy: It took four months to register the Union of Banana Workers of the South – SITRABANSUR. They requested registration on 15 July and obtained it on 15 November. The Labour Department of the Ministry of Labour and Social Welfare held up the union's registration by demanding that the organisation change its name, even though the union has a statutory right to choose it own name.
The day it registered for registration harassment against the union began at the Olga Maria plantation, which works for the Empresa Frutera Internacional S.A. and produces bananas for Chiquita Brand. 12 union leaders were illegally detained in the plantation's offices and were offered 5,000 quetzales for giving up their union struggle.
The union's General Secretary, Germán Aguilar, came under strong pressure to disclose the names of the union's leaders and advisors, but he refused to do so.
On 20 November the workers who formed the union were taken by the company's armed security guards to the administrative offices where they were subjected to threats and intimidation to make them leave the company and desist from the collective dispute the union had begun three days earlier, submitting a list of socio-economic demands to the courts. As a result of this pressure a group of workers signed their resignations.
On 21 November all the union's founding members who had refused to desist were dismissed and evicted from the company premises by security guards. Francisco del Rosario López, a founder and a member of the union's Provisional Executive Committee, disappeared on the day of the dismissals and his whereabouts are still unknown.
The threats did not end with the dismissals. After the plantation was inspected by the Labour Ministry as a result of complaints about the above events, a contractor threatened the union leaders they would die if the plantation were to close down. Similarly, UNSITRAGUA activists who had supported the formation of the SITRABANSUR reported that they had been pursued by persons unknown to them
By the end of the year the dismissed workers had still not been reinstated. On 17 December 2007, the Justice of the Peace in the municipality of Tiquisate visited the Olga Maria plantation to ensure that the order to reinstate the workers and pay them the salaries and allowances owed to them was complied with. The company's representative refused to do so, claiming that the dismissed workers were not employees of Frutera Internacional.