Effect given to the recommendations of the committee and the Governing Body - Report No 372, June 2014

Case No 2341 (Guatemala) - Complaint date: 13-MAY-04 - Closed

Effect given to the recommendations of the committee and the Governing Body

1. 36. The Committee last examined this case at its March 2011 meeting [see 359th Report, paras 545–560], when it made the following recommendation:
   • The Committee deeply deplores finding itself obliged, in view of the lack of response from the Government, to reiterate its previous recommendations on certain allegations and urges the Government to reply without delay:
   • – With respect to the dismissal of 18 employees from the municipality of Comitancillo (San Marcos), the Committee deplores the long delay that has occurred owing to the various procedures and appeals, and recalls that justice delayed is justice denied. It asks the Government to send the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare, and to inform it whether the abovementioned workers have been reinstated following the decision of the Constitutional Court dated 14 November 2006.
   • – With regard to the alleged interference by the enterprise Portuaria Quetzal in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to keep it informed of any administrative or judicial decision taken on this issue, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 13 of the 600 members.
2. 37. In addition, at the same meeting [see 359th Report, para. 646], the Committee decided, in the framework of Case No. 2609, that the alleged violations of the exercise of freedom of association and collective bargaining in the Quetzal port enterprise, including the dismissal of a considerable number of workers following the creation of the Union of Dockers and Workers involved in Related Activities in Quetzal Port (SIGRETEACOPQ) would thereafter be examined under Case No. 2341. In this regard, the Committee made the following recommendation: “… the Committee requests the Government to keep it informed of the outcome of the cases that are still awaiting a decision and to send it a copy of the rulings when they are handed down”.
3. 38. In a communication dated 9 November 2011, the Government submitted a copy of the information provided by the judiciary on the status of the judicial proceedings related to the collective disputes and the dismissals in the Quetzal port enterprise and in cargo handling enterprises. The information indicates that, of the five collective disputes submitted to the courts, two have been closed; in two other cases the proceedings are under way; in the fifth case, although the proceedings are under way, the defendant has not been notified and the complainant has not pursued any follow-up action. Regarding the judicial requests for reinstatement due to the dismissal of numerous workers following the creation of SIGRETEACOPQ, it appears that: (i) in seven of the cases the requests for reinstatement were not admitted and the proceedings have been closed; (ii) in nine cases in which an appeal had been lodged against the judicial reinstatement ruling, the court of appeal or, where applicable, the Constitutional Court, overturned the reinstatement ruling; (iii) in 59 cases in which reinstatement rulings were handed down at first instance, but were not implemented by the enterprise, the workers have not taken the necessary follow up action; and (iv) in six cases the judicial proceedings are pending a final decision.
4. 39. The Committee takes note of this information. It observes that the Government has only submitted the raw information on the proceedings transmitted by the judiciary, without providing an explanation or sending a copy of the aforementioned rulings as requested by the Committee. The Committee therefore again requests the Government to submit a copy of the rulings referred to in its communication. The Committee also notes that in the many cases (59) in which the judicial reinstatement rulings handed down at first instance have not been appealed, the rulings have not been implemented and the workers have failed to take any action to remedy this non-compliance. Recalling that under the Memorandum of Understanding signed with the Workers’ group of the Governing Body of the ILO on 26 March 2013 as a result of the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), presented under article 26 of the Constitution of the ILO, the Government undertook to develop “[p]olicies and practices to ensure the application of labour legislation, including […] efficient, timely and effective judicial procedures”, the Committee requests the Government to provide detailed information on the reasons for non-compliance with the reinstatement rulings against which no appeals have been lodged.
5. 40. The Committee notes that, six years after the events which are the subject of this complaint against the Quetzal port enterprise and cargo handling enterprises, various proceedings concerning the collective disputes filed before the courts and various proceedings filed by the dismissed workers are still pending a final ruling. Recalling that “justice delayed is justice denied” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105], the Committee expects that the pending rulings will be handed down as soon as possible and requests the Government to keep it informed in this regard.
6. 41. Regarding the dismissal of 18 workers from the municipality of Comitancillo (San Marcos), the Committee regrets to note that the Government has still not sent any information. The Committee again urges the Government to keep it informed of the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare, and to inform it whether the workers have been reinstated following the decision of the Constitutional Court dated 14 November 2006.
7. 42. With regard to the alleged interference by the Quetzal port enterprise in the extraordinary general assembly of the Quetzal port enterprise trade union, during which trade union leaders were removed from their positions in the absence of a quorum, the Committee regrets to note that the Government has still not submitted any information. The Committee again urges the Government to keep it informed of any administrative or judicial decisions handed down in this regard, particularly with regard to the appeals lodged by 13 of the 600 members against the decisions of the trade union assembly.