Interim Report - Report No 373, October 2014

Case No 2948 (Guatemala) - Complaint date: 09-MAY-12 - Follow-up

Allegations: The complainant organization denounces a large number of dismissals, transfers and acts of anti-union harassment against various workers’ organizations in the public sector and one workers’ organization in the private sector, and alleges that the labour inspectorate and labour tribunals are failing to comply with their duty to provide appropriate protection in these cases

1. 335. The complaint is contained in communications dated 9, 10 and 11 May 2012 presented by the Guatemalan Union, Indigenous and Peasant Movement (MSICG).
2. 336. The Government sent partial observations in communications dated 4 April and 22 July 2014.
3. 337. 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 complainant’s allegations

Union of Organized Workers of the Attorney-General’s Office

1. 338. In relation to the situation of the Union of Organized Workers of the Attorney-General’s Office (STOPGN) and its members, the complainant alleges that: (i) the Attorney General’s Office, having failed to allocate the necessary budget to implement an act on the protection of minors under which public institutions must give constant and immediate attention to at-risk minors, began to impose mandatory shifts in addition to the normal working day, most of which in consecutive 24-hour periods, threatening to dismiss and make a criminal complaint against anyone who declined to comply; (ii) since the matter was not submitted to the joint board established under the collective agreement on working conditions, the trade union turned to the labour inspectorate, which requested an end to the mandatory shifts; (iii) in order to circumvent the requests of the labour inspectorate, the Attorney-General’s Office lodged an appeal on the grounds of unconstitutionality (amparo) against the trade union, arguing that its action had impeded the implementation of the act on the protection of minors; (iv) the court of first instance anomalously authorized the amparo motion, prohibiting the union from taking any action to defend its members’ rights; (v) an appeal was lodged against the decision of the court of first instance before the Constitutional Court; (vi) on 23 April 2012, the labour inspectorate again noted the same failures to comply with labour legislation and the collective agreement; (vii) on 27 April, the union conducted a peaceful protest against the imposition of conditions akin to forced labour, which gave rise to wide-scale police intervention at the behest of the then Attorney-General; and (viii) on 27 May 2012, the Attorney-General made stigmatizing public statements designed to discredit the trade union organization, claiming that it might have links with organized crime and that he would ask the Public Prosecution Service to conduct an investigation, which is allegedly currently under way (No. 001-2012-66383).

Union of Workers of the Guatemalan Social Security Institute

1. 339. Concerning the situation of the Union of Workers of the Guatemalan Social Security Institute (STIGSS) and its members, the complainant alleges that: (i) the Guatemalan Social Security Institute (IGSS) has refused to negotiate with the STIGSS since 2002, in violation of the labour law and despite the fact that the STIGSS is the majority trade union within the IGSS, which led the STIGSS to bring the case before the courts; (ii) in order to sideline the STIGSS, the IGSS signed a collective agreement on working conditions with minority trade unions which do not even have 40 per cent of the members of the STIGSS; (iii) in order to impede the court from issuing a final decision, the IGSS resorted to a whole series of delaying tactics; (iv) in order to weaken the union, the IGSS has made hiring temporary workers for permanent posts widespread, so as to create precarious work which is not conducive to union membership and to facilitate the dismissal of workers who are union members; (v) against this backdrop, the STIGSS and the MSICG launched a campaign to defend IGSS workers and to combat the privatization of the social security system; (vi) in response to these actions, the IGSS has embarked upon a wide-scale campaign of terminating employment contracts, which affects members and officials of the STIGSS in 90 per cent of cases; (vii) the Third Chamber of the Labour and Social Welfare Appeals Court is cooperating with this initiative and is in breach of the country’s laws in that it considers that the employer’s assertion that the dismissals do not constitute anti union retaliation is in itself sufficient to demonstrate the absence of anti-union discrimination. As a result, more than 600 STIGSS members have been dismissed with judicial authorization; and (viii) furthermore, STIGSS members and officials are subject to constant harassment through disciplinary proceedings and legal action, such as in the case of Miguel Ángel Delgado López, the STIGSS Secretary for Labour and Disputes, who was subject to a judicial order for dismissal as a result of false allegations of alcoholism, and María Teresa Chiroy Pumay, the STIGSS Secretary for Minutes and Agreements, who was assigned the duties of various positions concurrently and who is subject to various disciplinary proceedings.

Union of Workers of the Public Criminal Defence Institute

1. 340. Regarding the situation of the Union of Workers of the Public Criminal Defence Institute (STIDPP) and its members, the complainant alleges that: (i) since its establishment on 29 June 2006, the STIDPP’s functioning has been impeded with transfers and dismissals of its officials; (ii) in July 2006, the Secretary-General ad interim, Manuel de Jesús de Ramírez, was transferred to a new position ten hours away from the capital where he previously worked; (iii) after lengthy legal proceedings which culminated in Mr de Jesús de Ramírez’s return after three years, a campaign of harassments and threats, including death threats, was waged against him; (iv) Mr de Jesús de Ramírez is currently subject to criminal proceedings initiated by his employer; (v) on 16 March 2012, only hours after giving a national press conference for the MSICG against union harassment in which various STIDPP officials participated, Amparo Amanda Ruiz Morales, a member of the STIDPP and the MSICG, was notified of her transfer to a new site ten hours away from her previous workplace; (vi) the labour inspectorate requested the Public Criminal Defence Institute to annul the unlawful transfer. The Institute lodged an administrative appeal against that decision, thereby suspending the effects of the decision to date, and seized the occasion to initiate proceedings to dismiss the worker; (vii) as a result of a labour complaint submitted against the widespread and anti-union use of temporary employment contracts by the Institute, Fermín Iván Ortiz Maquin, the STIDPP Minutes and Agreements Secretary, and Isidro Sosa de León, the STIDPP External Relations Secretary, were unilaterally dismissed on 2 May 2012, in breach of the national legislation, under which judicial authorization is required in order to dismiss a union official; (viii) the labour inspectorate, noting the anti-union nature of the contract terminations, requested that the dismissals be overturned. However, the Institute brought an application for the annulment of that decision before the General Labour Inspectorate on the grounds that it was unlawful, which resulted in the suspension of the inspectorate’s action, despite the fact that the type of appeal which was lodged is not contemplated under the law; (ix) as a result of their defencelessness ensuing from the labour inspectorate’s lack of action, the union officials submitted an application for their reinstatement before the Labour Court on 4 May 2012. Despite the fact that, pursuant to sections 379 and 380 of the Labour Code, the reinstatement should have taken place within a maximum of 24 hours, the judicial authorities have thus far failed to issue a decision; and (x) some days after the MSICG (to which the STIDPP is affiliated) submitted a challenge to the constitutionality of the rules of procedure and disciplinary rules of the Public Criminal Defence Institute in March 2012 on the grounds that they were anti-union in nature, the Institute initiated proceedings to dismiss Marvin René Donis Orellana, the STIDPP Secretary-General, attempting to assign him duties which fall under the responsibilities of other, non-unionized workers.
2. 341. In the light of the aforementioned facts, the complainant alleges that the STIDPP has suffered anti-union harassment by the State via the Public Criminal Defence Institute, assisted by both the labour courts and the General Labour Inspectorate.

Union of Workers of the Agricultural Company Soledad SA

1. 342. Regarding the situation of the Union of Workers of the Agricultural Company Soledad SA (SITRASOLEDAD) and its members, the MSICG alleges that: (i) in September 2010, as a result of the union’s submission of a list of demands and with a view to breaking the union, the employer dismissed all of SITRASOLEDAD’s members; (ii) the Labour and Social Welfare Court of First Instance of the department of Suchitepéquez ordered the reinstatement of all of the workers, which the employer subsequently appealed; (iii) the Fourth Chamber of the Labour and Social Welfare Court of Appeal anomalously amended the proceedings on at least two occasions in the cases of the following workers: Gilder Amoldo Polo García, Humberto Francisco Álvarez Pérez, Rocael de Jesús Álvarez Pérez, Argelio Aurelio Álvarez, William Ismael Santos Morales, Simón Eliseo Rompich Xitamul, Rafael Xalin Cumatzil, Angelina Yolanda García Panjoj, Flory Aracely García Santos, Rose Meri Bran Méndez, Ana Isabel Chalachij Ajqui, Jorge Arsenio Rompich Pérez, Rolando Antonio Pérez de la Cruz, Exequiel Xalin Cumatzil, Noe Fernando Valdez Alonzo, Marco Antonio Pérez de la Cruz and Oscar Ricardo Rompich López; (iv) in the said cases, the initial reinstatement orders were overturned, with objections and evidence submitted out of time being admitted; (v) ultimately, only the reinstatements of the following workers were therefore upheld: Josué Misael Bizarro Comatzin, Wiltor Adelso Rompiche Alvarado, Edgar Emigdio Sales Fabián, Manuel Domingo Díaz Much, José Manuel Tzoc Suar, Eber Artemio Bran Méndez, Isaías Bautista López, Hugo Leonel Arreaga Méndez, Gustavo Benjamín Álvarez Ajbal, Carlos Aníbal Ramírez Paíz, Rodrigo García Cunen, Domingo Martin García Panjoj, Danilo Isidro Arreaga Méndez, Carlos Enrique Serech De León, Felipe Arreaga Catalán, Esmelin Valeriano Castillo Leiva, Jairo Elias Canas García, Edy Marvin Canas Chonay, Pedro De León Nicolás, Gabriel Enrique Canas García and Lester Onelio Ramírez Arreaga; (vi) however, despite the fact that within the various proceedings, repeated requests were made to the Labour and Social Welfare Court of First Instance of the department of Suchitepéquez to ensure the implementation of those reinstatements which were upheld, the court failed to appoint an executor to do so; (vii) consequently, the workers who were dismissed on 1 September 2010 have still not been reinstated, despite a series of reinstatement orders which have been final since 15 June 2011; and (viii) the workers affected have been left without any financial resources and without any health care from the Guatemalan Social Security Institute.

B. The Government’s reply

1. 343. In a communication of 4 April 2014, the Government sent its observations on the allegations contained in the complaint concerning the STIGSS. In this regard, the Government states that: (i) the rulings at both first and second instance on the dismissal of STIGSS members are consistent with the principles of legality and due process; (ii) the allegations concerning the IGSS’s refusal to negotiate with the STIGSS no longer apply in view of the fact that, according to information provided by the President of the Amparo and Preliminary Proceedings Chamber of the Supreme Court of Justice, the dispute over the negotiation of the collective agreement on working conditions between the STIGSS and the IGSS was resolved on 26 August 2013, when mutual agreement was reached on a collective agreement comprising 59 articles; (iii) regarding the request for judicial authorization for the dismissal of Miguel Ángel Delgado López, the Tenth Labour and Social Welfare Court ruled that the IGSS Executive Board’s Directive No. 1090 (Rules and regulations for human resources administration within the IGSS) was unconstitutional; an appeal was lodged against that ruling before the Constitutional Court, hence a final decision on the case is still pending; and (iv) María Teresa Chiroy Pumay holds the post of management assistant in the IGSS Executive Board. By two official notifications of 3 April 2012 and one of 10 April 2012, she was subject to three disciplinary measures: two suspensions without pay (one of two days and one of one day) and one written warning.
2. 344. In a communication of 22 July 2014, based on the information provided by the Attorney-General’s Office, the Government sent its observations on the allegations in the complaint concerning the STOPGN. In this regard, the Government states that: (i) on 13 March 2014, the Constitutional Court permanently stayed the amparo motion filed by the Attorney-General’s Office against the STOPGN Executive Board; (ii) the act on the protection of minors (the Alba-Keneth Alert System Act) made it necessary to establish a shift system within the Operational Unit for the Alba-Keneth Alert System in the Attorney-General’s Office, but that did not mean that the rights of the persons working in that unit were violated; (iii) any worker who has to work a 24-hour emergency shift is entitled to a rest period of 48 continuous hours after each such shift; and (iv) besides the fact that the allegations pertain to matters concerning working time and not to the safeguarding of freedom of association and collective bargaining, they are wholly without foundation and do not reflect reality.

C. The Committee’s conclusions

1. 345. The Committee notes that this case concerns allegations of a large number of dismissals, transfers and acts of anti-union harassment against various workers’ organizations in the public sector and one workers’ organization in the private sector, in relation to which the labour inspectorate and the labour courts have purportedly failed in their duty to provide adequate protection.
2. 346. While noting the Government’s observations on the alleged violation of the trade union rights of the members of the STIGSS and of the STOPGN, the Committee deeply regrets the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has not sent its observations on a substantial part of the allegations in this case, even though it has been requested several times, including through several urgent appeals, to present its comments and observations.

Union of Organized Workers of the Attorney-General’s Office

1. 347. Regarding the situation of the STOPGN and its members, the Committee observes that the complainant’s allegations concern acts of harassment, including legal action under constitutional and criminal law against the STOPGN and stigmatizing public statements with a view to impeding the free exercise of freedom of association. The acts allegedly followed the union’s submission of a complaint to the labour inspectorate about the working conditions in the Attorney-General’s Office owing to the entry into force of an act on the protection of minors, which resulted in the labour inspectorate’s issuance of various decisions finding that the legislation on working time had been breached.
2. 348. The Committee takes note of the Government’s observations stating that: (i) the Constitutional Court permanently stayed the amparo motion filed by the Attorney-General’s Office against the STOPGN; (ii) besides the fact that the allegations pertain to working time and not to the safeguarding of freedom of association and collective bargaining, they are wholly without foundation and do not reflect reality; and (iii) any worker who has to work a 24-hour emergency shift to give effect to the new act on the protection of minors is entitled to a rest period of 48 continuous hours after each such shift.
3. 349. While noting the permanent stay of the amparo motion filed by the Attorney-General’s Office against the STOPGN, the Committee observes that the Government has not provided any information about the criminal complaint against the STOPGN which the Attorney-General’s Office had filed with the Public Prosecutor’s Office. Recalling that defending the rights of its members before the institutions responsible for enforcing compliance with labour legislation is a fundamental aspect of the activities of trade union organizations, the Committee requests the Government to take the measures necessary to guarantee that the STOPGN may freely exercise such activities and to provide the Committee, as a matter of urgency, with information on the criminal complaint that was filed against the STOPGN.

Union of Workers of the Guatemalan Social Security Institute

1. 350. Regarding the situation of the STIGSS and its members, the Committee notes that the allegations concern: (i) the IGSS’s obstruction of the negotiation of the collective agreement on working conditions; (ii) the existence of a widespread campaign of terminating the contracts of workers who were members of the STIGSS, and the failure of the judicial organs to provide adequate protection against the anti-union discrimination; and (iii) the harassment of two union officials, Miguel Ángel Delgado López and María Teresa Chiroy Pumay.
2. 351. As to the negotiation of the collective agreement on working conditions, the Committee notes with interest the Government’s observation that the IGSS and the STIGSS signed a collective agreement on working conditions on 26 August 2013, thereby ending a collective dispute which had lasted more than 11 years. As to the alleged widespread anti-union dismissals and the lack of effective judicial protection in this regard, the Committee notes the complainant’s statements that more than 600 STIGSS members have been unfairly dismissed in recent years; that 90 per cent of the employment contracts which were terminated by the IGSS were of STIGSS members; and that the courts did not take this aspect into account when ruling on whether the dismissals were anti-union in nature. The Committee further notes that the Government relays the observations of the judicial authority that all court rulings both at first and at second instance on the dismissal of IGSS workers who were members of the STIGSS were consistent with the principles of legality and due process. In this particular case, the Committee observes that it does not have any precise information on the persons affected by the alleged discriminatory termination of employment contracts, the dates of those terminations or copies of the impugned court rulings. In order to be able to conduct a fully informed examination of the allegations and to allow the Government an opportunity to supplement its observations, where appropriate, the Committee therefore requests the complainant organization to provide further details on the alleged anti-union termination of employment contracts and copies of the corresponding court rulings.
3. 352. As to Miguel Ángel Delgado López, the STIGSS official who was allegedly the subject of a request for judicial authorization for dismissal as a result of false accusations, the Committee notes the information from the judiciary, transmitted by the Government, stating that the court of first instance had found the IGSS rules and regulations of human resources administration under which the proceedings to dismiss the union official were initiated to be unconstitutional, and that that ruling was under appeal before the Constitutional Court, hence a final decision was still pending. The Committee therefore requests the Government to keep it informed of any new court decision in this case and of Miguel Ángel Delgado López’s current employment situation.
4. 353. As to María Teresa Chiroy Pumay, a STIGSS union official who was subject to various disciplinary proceedings, the Committee notes the information from the Government that Ms Chiroy Pumay currently holds the post of management assistant in the IGSS Executive Board and in April 2012 was subject to three disciplinary measures consisting of two suspensions from duty without pay (two days and one day) and one written warning. The Committee requests the Government to inform it of the reasons for these disciplinary sanctions.

Union of Workers of the Public Criminal Defence Institute

1. 354. Regarding the situation of the STIDPP and its members, the Committee observes that the complainant’s observations concern various cases of unlawful dismissal and transfer of union officials – including Manuel de Jesús de Ramírez – in retaliation for complaints filed by the STIDPP, the lack of effect given to the decisions of the labour inspectorate on the aforementioned facts, and the lack of a ruling by the labour courts on the applications for reinstatement.
2. 355. In addition, on the basis of Case No. 2609 of which it is currently seized, the Committee expresses its deep concern that Manuel de Jesús de Ramírez, Secretary-General of the STIDPP, was murdered on 1 June 2012 and that, according to the information provided by the Government in the context of Case No. 2609, the Guatemalan Public Prosecutor’s Office considers his murder to be an act of anti-union repression. The Committee deeply deplores the murder of the STIDPP Secretary-General, Mr Jesús de Ramírez. As a result, the Committee urged the Government to take all necessary measures to identify and bring to justice those responsible at the earliest opportunity and to keep it informed of any developments [see 368th Report, approved by the Governing Body at its 318th Session (June 2013), paras 438, 443, 482 and 496]. The Committee will examine the progress made in identifying and punishing Manuel de Jesús de Ramírez’s killers in its next examination of Case No. 2609.
3. 356. In view of the lack of observations from the Government on the aspects of the complaint concerning the STIDPP, the Committee recalls, firstly, that where cases of alleged anti union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 835]. In the light of the foregoing, the Committee urges the Government to send as a matter of urgency its observations on the allegations concerning the STIDPP in this case; to ensure, in any event, that the proceedings brought before the labour inspectorate and courts in relation to the aforementioned facts result in swift decisions which are implemented; and, in general, to immediately take the necessary steps to safeguard the exercise of freedom of association within the Public Criminal Defence Institute.

Union of Workers of the Agricultural Company Soledad SA

1. 357. Regarding the situation of SITRASOLEDAD and its members, the Committee observes that the complainant’s allegations concern the anti-union dismissal in September 2010 of all of the union’s members, the anomalous reversal on appeal of 17 reinstatement orders issued at first instance, and the failure to execute the 21 reinstatement orders upheld on appeal on 15 June 2011 in the absence of the appointment of an executor.
2. 358. In view of the fact that the Government has not sent observations on this aspect of the complaint, the Committee would like to recall, firstly, that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., para. 826]. The Committee further recalls that, under the terms of the Memorandum of Understanding signed with the Workers’ group of the ILO Governing Body on 26 March 2013 further to the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made under article 26 of the ILO Constitution, the Government made a commitment to adopt “policies and practices to ensure the application of labour legislation, including … effective and timely judicial procedures”. On this basis, the Committee urges the Government to send, as a matter of urgency, its observations on the aforementioned allegations, and to ensure that the final judicial orders for reinstatement are executed immediately.

The Committee’s recommendations

1. 359. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee deeply regrets that, despite several requests and urgent appeals, the Government has failed to provide its observations on a substantial part of the allegations in this case.
   • The Committee requests the Government to take the measures necessary to guarantee that the STOPGN may freely exercise its activities in defence of its members’ rights before the institutions responsible for enforcing compliance with labour legislation, and to provide the Committee, as a matter of urgency, with information on the criminal complaint that was allegedly filed against the STOPGN.
   • The Committee requests the complainant to provide further details on the alleged anti-union termination of employment contracts of employees of the Guatemalan Social Security Institute and to send copies of the corresponding judicial rulings.
   • The Committee requests the Government to keep it informed of any new judicial ruling in the proceedings concerning the dismissal of the STIGSS official Miguel Ángel Delgado López and of his current employment situation.
   • The Committee requests the Government to provide it with information on the reasons for the disciplinary sanctions imposed on Ms Chiroy Pumay.
   • (f) Gravely concerned by the murder of the STIDPP Secretary-General, de Jesús de Ramírez – which was examined by the Committee under Case No. 2609, and was considered by the Public Prosecutor’s Office of Guatemala to be an act of anti-union repression – the Committee urges the Government to send, as a matter of urgency, its observations on the allegations in this case concerning the STIDPP; to ensure in any event that the proceedings brought before the labour inspectorate and the courts in relation to the aforementioned facts result in swift decisions which are implemented; and, in general, to immediately take the necessary steps to safeguard the exercise of freedom of association within the Public Criminal Defence Institute.
   • (g) The Committee urges the Government to send, as a matter of urgency, its observations on the allegations concerning the situation of SITRASOLEDAD and its members, and to ensure that all final judicial orders for reinstatement are executed immediately.