Report in which the committee requests to be kept informed of development - Report No 362, November 2011

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

Allegations: Refusal of the Mayor of Chinautla to negotiate a collective agreement and dismissal of 14 union members and a union leader; reorganization of sections of the Ministry of Education with the possible elimination of posts with the aim of destroying the union that operates in that Ministry; measures taken by the Directorate General for Migration to dismiss a union official without court authorization; 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 a reorganization ordered by the Minister of Education, and action taken to dismiss all members of the union’s executive committee

1. 1081. The Committee last examined this case at its meeting of June 2011 and submitted an interim report to the Governing Body [see 360th Report, paras 635–641, approved by the Governing Body at its 311th Session].
2. 1082. The Government sent its observations in communications dated 30 May and 21 September 2011.
3. 1083. 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. 1084. In its previous examination of the case, the Committee made the following recommendations [see 360th Report of the Committee, para. 641].
2. The Committee notes with regret that, despite its urgent appeal, the Government has not provided any information, and accordingly urges it to implement without further delay the Committee’s previous recommendations, which are reproduced below.
3. – With regard to 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 and the action taken to dismiss all the members of the executive committee in the context of a process of reorganization by the Minister of Education, the Committee urges the Government once again to provide information, including figures, indicating whether the dismissal affected only unionized workers or whether the reorganization process and subsequent dismissal also affected other workers of the institution in question. The Committee also requests the Government to send a copy of the decision of the Constitutional Court which refused the appeal for amparo filed by the executive committee of the union.
4. – With regard to the collective dispute of an economic and social nature in the Chinautla Municipal Authority, which was the subject of a complaint filed with the judicial authority, and in the course of which 14 trade union members (who according to the Government are still working) and the union leader, Mr Marlon Vinicio Avalos, were dismissed, the Committee urges the Government to inform it without delay concerning the situation in the collective dispute in Chinautla Municipality, whether collective bargaining has taken place and whether the six workers with respect to whom a decision had been reached have been reinstated, and to send information on the situation of the other dismissed workers, including Mr Marlon Vinicio Avalos.
5. – With regard to the allegations of SITRAMUNICH, according to which the Chiquimula Municipal Authority dismissed or requested the termination of the contracts of employment of several workers (in particular members of the union) and made the payment of wages conditional on resignation of the workers, despite the existence of two judicial proceedings on a “collective dispute of a social and economic nature” (convocation of collective bargaining), whereby any termination of a contract of employment must be authorized by the judge, and noting the designation of a Conciliation Tribunal, the Committee requests the Government to ensure that, while the Conciliation Tribunal is sitting, no further dismissals or terminations of workers’ contracts occur in the Chiquimula Municipal Authority and that payment of wages is not made conditional on resignation by the workers or signing of a fixed-term contract. The Committee also requests the Government to take the measures necessary to reinstate those workers who were dismissed without the authorization of the judge, in defiance of a judicial decision on a “convocation to collective bargaining” which prohibits any termination of contracts without judicial authorization, with payment of the wages due. The Committee requests the Government to keep it informed in this respect and to inform it of the decision of the Conciliation Tribunal.
6. B. The Government’s reply
7. 1085. With regard to the anti-union dismissal of 16 members of the Union of Workers of the National Centre for Textbooks and Educational Material (CENALTEX), ordered by the then Minister of Education, the Government reports, in communications dated 30 May and 21 September 2011, that, in 2004, in connection with the process of reorganizing the units of the Ministry of Education, the Minister submitted a request to the National Civil Service Office (ONSEC) for approval in order to allow for the possible elimination of posts considered to be unnecessary, in line with the austerity measures relating to public spending that were being called for by the Government, on the basis of sections 37, 38 and 82 of the Civil Service Act.
8. 1086. Furthermore, the Human Resources Department of the Ministry of Education reports that “with the approval of ONSEC, as set out in Decision No. 2004DJ-3352 of 1 September 2004, and in accordance with the study of 29 April 2005 conducted by the General Directorate of Support Projects, it was established that there was a need to close down the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material, and consequently the members of staff working in that centre were removed from their posts”. It was also agreed that each former staff member would receive compensation and other benefits to which they were entitled by law and it is noted that the authorities acted in accordance with the law.
9. 1087. With regard to the Committee’s recommendation concerning the number of unionized workers affected by the dismissal, the Human Resources Department of the Ministry of Education reports that the reorganization in question affected all staff working at the centre, and points out that “the dismissal was at no point considered to be an act of reprisal against the workers of the ‘José de Pineda Ibarra’ National Centre for Textbooks and Educational Material, but occurred as a result of a study conducted by the General Directorate of Support Projects, approved by ONSEC, which established that CENALTEX was no longer of use and instead represented an unnecessary drain on the state budget; this led to the definitive closure of the centre and the consequent payment of the staff who worked there”. The Government states that the statutory procedures to terminate employment contracts were followed. Furthermore, in its communication of 21 September 2011, the Government indicates that the Constitutional Court denied the remedy of amparo (protection of constitutional rights) requested by the executive committee of the Union of Workers of CENALTEX (decision attached).
10. 1088. With regard to the collective dispute of an economic and social nature in the Chinautla Municipal Authority, the Government reports that, in the context of this labour dispute, several complaints of dismissal and claims for reinstatement have been presented and that these have been resolved, as an order was issued for the immediate reinstatement of the complainants and the payment of wages and other benefits owed to them for the period from their dismissal to their actual reinstatement, imposing the respective fine on the employer and issuing legal warnings or cautions as appropriate. On 8 October 2010, two certificates were issued, which were forwarded to the district office of the Public Prosecutor and to the First Criminal Court of the First Instance for Crimes against the Environment, at the request of the respective officials. It is noted that a new collective agreement on working conditions is not being discussed or negotiated because, through no fault of the court, the Conciliation Tribunal was not set up and the proceedings are currently under way.
11. 1089. Furthermore, the Work and Family Court of the First Instance of Chiquimula reports that it called upon the municipal authority not to take reprisals against the workers, or to prevent them from exercising their rights. The parties were informed that henceforth any termination of employment contracts in the Chiquimula Municipal Authority must be authorized by the court, even when dealing with employees who are not subscribed to the list of demands. An order was issued to establish the Conciliation Tribunal, and the employer was given a deadline of 24 hours to appoint a negotiating delegation and three days to issue a report on the direct negotiation of the list of demands. The employer has not complied with the order. It is noted that a new collective agreement on working conditions has not yet been discussed or negotiated because, through no fault of the court, the Conciliation Tribunal was not set up and the proceedings are currently under way.

C. The Committee’s conclusions

1. 1090. The Committee recalls that the allegations pending in the present case relate to 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 a reorganization ordered by the Minister of Education and action taken to dismiss all members of the union’s executive committee; the refusal of the Mayor of Chinautla to negotiate a collective agreement and dismissal of 14 union members and a union leader; and the termination of the contracts of employment of several workers by the Chiquimula Municipal Authority.
2. 1091. The Committee notes, with regard to the anti-union dismissal of 16 members of CENALTEX, ordered by the then Minister of Education, that according to the Human Resources Department of the Ministry of Education: (1) the reorganization in question affected all staff working at the centre, and was not an act of reprisal; (2) it all occurred as a result of the study conducted by the General Directorate of Support Projects, approved by ONSEC, which established that CENALTEX was no longer of use and instead represented an unnecessary drain on the state budget, in line with the austerity measures relating to public spending that were being called for by the Government; (3) it was agreed that each worker would receive the compensation and other benefits to which they were entitled by law; and (4) the Constitutional Court denied the remedy of amparo requested by the executive committee of the Union of Workers of CENALTEX. The Committee emphasizes that, although it is not within its competence to comment on economic measures which a government may take in difficult times, it nevertheless notes that decisions involving the dismissal of large numbers of workers should be discussed extensively with the trade union organizations concerned with a view to planning the occupational future of these workers in light of the country’s opportunities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1085]. As the dismissals that took place in 2004 were of an economic nature, affecting all the staff at CENALTEX, and not of an anti-union nature, the Committee will not pursue its examination of these allegations.
3. 1092. With regard to the collective dispute of an economic and social nature in the Chinautla Municipal Authority, the Committee notes that, according to the Government: (1) the complaints of dismissal were resolved as an order was issued for the immediate reinstatement of the complainants and the payment of wages and other benefits that were owed to them for the period from their dismissal to their actual reinstatement; and (2) two certificates were issued, which were forwarded to the district office of the Public Prosecutor and to the First Criminal Court of the First Instance for Crimes against the Environment, and the proceedings are under way.
4. 1093. With regard to the dispute in the Chiquimula Municipal Authority, the Committee notes that, according to the Government: (1) the municipal authority was called upon not to take reprisals against the workers, or prevent them from exercising their rights; (2) the parties were informed that henceforth any termination of employment contracts in the Chiquimula Municipal Authority must be authorized by the court; (3) an order was issued to establish the Conciliation Tribunal, and the employer was given a deadline of 24 hours to appoint a negotiating delegation and three days to issue a report on the direct negotiation of the list of demands; and (4) the employer did not comply with the order and the proceedings are under way.
5. 1094. With regard to the reinstatement of the six workers in the Chinautla Municipal Authority, with respect to whom a decision had been reached, and the situation of the other dismissed workers, including Mr Marlon Vinicio Ávalos, the Committee notes with interest that, according to the Government, the complaints of dismissal were resolved as an order was issued for the immediate reinstatement of the complainants and the payment of wages and other benefits that were owed to them for the period from their dismissal to their actual reinstatement, and two certificates were issued, which were forwarded to the district office of the Public Prosecutor and to the First Criminal Court of the First Instance for Crimes against the Environment, and the proceedings were under way. The Committee requests the Government to keep it informed in this respect.
6. 1095. With regard to the allegations of SINTRAMUNICH, according to which the Chiquimula Municipal Authority dismissed or requested the termination of the contracts of employment of several workers (in particular members of the union) and made the payment of wages conditional on resignation of the workers, despite the existence of two judicial proceedings on a “collective dispute of a social and economic nature”, the Committee recalls that it requested the Government to take the measures necessary to reinstate those workers who were dismissed without the authorization of the court, in defiance of a judicial decision on a “convocation to collective bargaining” which prohibits any termination of contracts without judicial authorization, with payment of wages due, and to keep it informed in this respect and to inform it of the decision of the Conciliation Tribunal. The Committee notes with regret that the Government has not sent the requested information. The Committee requests the Government to indicate without delay whether the workers who were dismissed without the authorization of the court have been effectively reinstated in their posts and have received wages and other benefits due to them.
7. 1096. With regard to the collective bargaining process between the Chiquimula Municipal Authority and SINTRAMUNICH, the Committee notes that, according to the Government, an order was issued to establish the Conciliation Tribunal, and the employer was given a deadline of 24 hours to appoint a negotiating delegation and three days to issue a report on the direct negotiation of the list of demands, and that the employer did not comply with the order, with the result that proceedings are under way. The Committee emphasizes that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence. This principle means that any unjustified delay in the holding of negotiations should be avoided [see Digest, op. cit., paras 936–937]. The Committee requests the Government to keep it informed of the follow-up given to the negotiation of the list of demands and to send it a copy of the decision handed down by the Conciliation Tribunal.

The Committee's recommendations

1. 1097. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the collective dispute in the Chinautla Municipal Authority, the Committee notes that, according to the Government, two certificates were issued, which were forwarded to the district office of the Public Prosecutor and to the First Criminal Court of the First Instance for Crimes against the Environment, and the proceedings are under way. The Committee requests the Government to keep it informed in this regard;
   • (b) With regard to the allegations of SINTRAMUNICH, according to which the Chiquimula Municipal Authority dismissed or requested the termination of the contracts of employment of several workers (in particular members of the union) and made the payment of wages conditional on resignation of the workers, despite the existence of two judicial proceedings on a “collective dispute of a social and economic nature”, the Committee recalls that it requested the Government to take the measures necessary to reinstate those workers who were dismissed without the authorization of the court, in defiance of a judicial decision on a “convocation to collective bargaining” which prohibits any termination of contracts without judicial authorization, with payment of the wages due, and to keep it informed in this respect and to inform it of the decision of the Conciliation Tribunal. The Committee requests the Government to indicate without delay whether the workers who were dismissed without the authorization of the court have been effectively reinstated in their posts and have received wages and other benefits due to them; and
   • (c) With regard to the collective bargaining process between the Chiquimula Municipal Authority and SINTRAMUNICH, the Committee requests the Government to keep it informed of the follow-up given to the direct negotiation of the list of demands and to send it a copy of the decision handed down by the Conciliation Tribunal.