Interim Report - Report No 338, November 2005

Case No 2361 (Guatemala) - Complaint date: 12-MAY-04 - Closed

Allegations: The mayor of Chinautla refused to negotiate a collective agreement and dismissed 14 union members and two union leaders; the Government is promoting a new civil service law containing provisions contrary to ratified ILO Conventions on freedom of association; departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates there; the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr. Pablo Cush with payment of lost wages and is taking measures to dismiss union leader Mr. Jaime Reyes Gonda without court authorization; the Directorate General for Migration refused to set up the mixed (joint) committee as set out in the collective agreement; 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material were dismissed as a result of a reorganization ordered by the Ministry of Education and action is being taken to dismiss all members of the union’s executive committee

943. The complaints are contained in communications from the Union of Workers of the City of Chinautla (SITRAMUNICH) (12 May, 9 June and 29 October 2004), the Trade Union Federation of Public Employees (FENASTEG) (28 and 29 October, 20 and 21 December 2004 and 21 January, 1 and 18 July 2005), the Union of Workers of the Directorate General for Migration (STDGM) (21 January 2005).

1. 944. The Government sent its observations in communications dated 19 January, 16 February, 8 March, 1 and 7 July, 12 September and 7 October 2005.
2. 945. 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. 946. In its communications of 12 May, 9 June and 29 October 2004, the Union of Workers of the City of Chinautla (SITRAMUNICH) alleges that the mayor refused to negotiate a collective agreement with the union and that 14 union members and two union leaders (Mr. Marlon Vinicio Avalos and Ms. Bilda Marley Flores) were dismissed, despite the judicial authority ordering their reinstatement in the context of the ongoing legal proceedings stemming from a collective dispute. In a resolution on 30 August 2004, the Human Rights Prosecutor noted the violation of labour law and the freedom of association of the dismissed workers, and stated that there were reasonable indications of the mayor’s responsibility.
2. 947. FENASTEG alleges in its communication of 28 October 2004 that the Government is promoting a new civil service law containing provisions contrary to the ILO Conventions, ratified by Guatemala, on freedom of association: lack of impartiality of the body that handles disputes, limitations on the right to strike, the impossibility for the labour inspectorate to supervise and punish infractions of labour law, the abolishment of the National Civil Service Office and consequently of its union, etc.
3. 948. In its communication of 20 December 2004, FENASTEG alleges that a process to reorganize the departments of the Ministry of Education and possibly to eliminate posts has been approved, in spite of the fact that the Union of Workers in the Guatemalan Departmental Education Directorate (STDDED) has brought a socio-economic dispute before the judicial authority. The reorganization is part of a strategy to destroy the union and also violates the right to collective bargaining; the complainant alleges that discussions on the socio-economic dispute to improve working conditions were imminent.
4. 949. In their communications of 21 January 2005, FENASTEG and the Union of Workers of the Directorate General for Migration (STDGM) allege that the aforementioned Directorate General in the Ministry of the Interior also completely refuses to negotiate the collective agreement on working conditions. It refuses to reinstate union leader Mr. Pablo Cush (who had been suspended) despite the fact that he was absolved in the criminal courts by a ruling on 13 August 2004. It has also begun disciplinary dismissal proceedings against union leader Mr. Jaime Reyes Gonda and attempted to notify him of his dismissal despite not having the court authorization required by the Labour Code. In a communication dated 19 April 2005, the STDGM notes that union leader Pablo Cush has been reinstated to his post but that he has not been paid his lost wages. In addition, the Directorate General for Migration is not willing to set up the mixed (joint) committee for labour disputes as set out in the collective agreement.
5. 950. In communications dated 1 and 18 July 2005, FENASTEG alleges that 16 members of the Union of Workers at the “José de Pineda Ibarra” National Centre for Textbooks and Educational Materials were dismissed because of an illegal reorganization by the Minister of Education, even though there was a socio-economic dispute pending before the judicial authority. All this was done without consultation, and is aimed at destroying the union and the right to collective bargaining. The Government has also brought a case to dismiss all the members of the union’s executive committee.
6. B. The Government’s reply
7. 951. In its replies dated 19 January and 16 February 2005, the Government states that the new civil service bill was still at the stage of consultation, discussion and revision with various institutions and union organizations (the Government encloses a copy of minutes of meetings where union organizations were present) and says that it does not contravene the Conventions that have been ratified.
8. 952. In its communications of 8 March and 1 July 2005, the Government states that all the workers at Chinautla Town Hall are at their respective posts, apart from a few who have found better jobs. Ms. Bilda Marley Flores was reinstated following a judicial order but after one day back at work (18 May 2004) she did not return to her post and therefore, after this was formally placed on record, dismissal proceedings were brought before the judicial authority on 28 May 2004, which are still pending. As a result of the socio-economic dispute brought before the judicial authority by the union, a conciliation and arbitration court has been set up whose work is still under way.
9. 953. In its communication of 7 July 2005, the Government states that the judicial authority confirmed the reinstatement of Bilda Marley Flores on 24 May 2005 as a result of an appeal presented by Chinautla Town Hall. In its communications of 12 September and 7 October 2005, the Government states that the allegations relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material are not receivable because the complainants do not indicate the names of the persons concerned, nor the jurisdiction dealing with these cases.

C. The Committee’s conclusions

1. 954. The Committee observes that the complainants in this case have made the following allegations: the mayor of Chinautla refused to negotiate a collective agreement and dismissed 14 union members and two union leaders; the Government is promoting a new civil service law containing provisions contrary to ratified ILO Conventions on freedom of association; departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates there; the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr. Pablo Cush with payment of lost wages, and is taking measures to dismiss union leader Mr. Jaime Reyes Gonda without court authorization; the Directorate General for Migration refused to set up the mixed (joint) committee as set out in the collective agreement; 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material were dismissed as a result of a reorganization ordered by the Ministry of Education and action is taken to dismiss all members of the union’s executive committee.
2. 955. Regarding the allegations concerning Chinautla Town Hall (the dismissal of 14 union members and two union leaders), the Committee notes the Government’s statements that all the workers at the Town Hall are at their respective posts (apart from a few who have found better jobs), including union leader Bilda Marley Flores, whose reinstatement was ordered by the judicial authority. The Committee notes that the Government states that as a result of the socio-economic dispute brought before the judicial authority by the union, a conciliation and arbitration court has been set up, and requests the Government to inform it of any decisions that are handed down by that court regarding the 14 dismissed union members (who, according to the Government, are still working at the moment) and union leader Marlon Vinicio Avalos. In addition, noting that the Government has not replied to the allegation that the mayor of Chinautla refused to negotiate the collective agreement, the Committee requests the Government to take measures to promote collective bargaining in Chinautla Town Hall.
3. 956. Regarding the allegations of 2004 that the Government is promoting a new civil service law containing provisions contrary to ratified ILO Conventions on freedom of association, the Committee notes the Government’s statement that the new civil service bill is still at the stage of consultation, discussion and revision with various institutions and with union organizations. The Committee requests the Government to ensure that the draft law that emerges from the consultation process is fully compatible with Conventions Nos. 87 and 98 and to send a copy of it when the process is complete, and reminds the Government that the ILO is ready to provide assistance to ensure the compatibility of the bill with the aforementioned Conventions.
4. 957. Lastly, the Committee notes with regret that the Government has not replied to the following allegations: departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates there; the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr. Pablo Cush with payment of lost wages, and is taking measures to dismiss union leader Mr. Jaime Reyes Gonda without court authorization; the Directorate General for Migration refused to set up the mixed (joint) committee as set out in the collective agreement. The Committee requests the Government to reply to these allegations without delay. As regards the allegations concerning the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material as a result of an illegal reorganization, without consultation, ordered by the Ministry of Education, and the action taken to dismiss all members of the union’s executive committee, the Committee requests the complainant organization (FENASTEG) to transmit the names of the workers concerned, and to indicate the court dealing with this issue.

The Committee's recommendations

1. 958. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting the Government’s statement that as a result of the socio-economic dispute before the judicial authority, a conciliation and arbitration court has been set up, the Committee requests the Government to inform it of any decisions that will be handed down by that court regarding the 14 dismissed union members (who, according to the Government, are still working at the moment) and union leader Marlon Vinicio Avalos. In addition, noting that the Government has not replied to the allegation that the mayor of Chinautla refused to negotiate the collective agreement, the Committee requests the Government to take measures to promote collective bargaining in Chinautla Town Hall.
   • (b) The Committee requests the Government to ensure that the civil service bill that emerges from the consultation process is fully compatible with Conventions Nos. 87 and 98 and to send a copy of the bill when the process is complete, and reminds the Government that the ILO is ready to provide assistance to ensure the compatibility of the bill with the aforementioned Conventions.
   • (c) Lastly, the Committee notes with regret that the Government has not replied to the following allegations: departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates there; the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr. Pablo Cush with payment of lost wages, and is taking measures to dismiss union leader Mr. Jaime Reyes Gonda without court authorization; the Directorate General for Migration refused to set up the mixed (joint) committee as set out in the collective agreement. The Committee requests the Government to reply to these allegations without delay. As regards the allegations concerning the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material as a result of an illegal reorganization, without consultation, ordered by the Ministry of Education, and the action taken to dismiss all members of the union’s executive committee, the Committee requests the complainant organization (FENASTEG) to transmit the names of the workers concerned, and to indicate the court dealing with this issue.