Interim Report - Report No 374, March 2015

Case No 2811 (Guatemala) - Complaint date: 26-AUG-10 - Closed

Allegations: The complainant organization denounces the anti-union transfer of a trade union official in the National Institute of Forensic Science, anti-union dismissals in the municipality of Chimaltenango, impediments to the negotiation of a new collective agreement in the Higher Electoral Court, and the violation of the provisions of a collective agreement in the agricultural sector

1. 359. The Committee last examined this case at its March 2012 meeting, when it presented an interim report to the Governing Body [see 363rd Report, paras 645 to 663, approved by the Governing Body at its 313th Session (March 2012)].
2. 360. The Government sent partial replies to the requested information in a communication dated 12 November 2014.
3. 361. 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. 362. At its March 2012 meeting, the Committee made the following interim recommendations regarding the allegations presented by the complainant organizations [see 363rd Report, para. 663]:
   • (a) Regarding the alleged anti-union transfer of the trade union official Ms Nilda Ivette González Ruiz, the Committee regrets that the Government has provided no information on this allegation and urges it to do so without delay and to take the necessary steps to ensure that the abovementioned principle is respected. The Committee requests the Government to keep it informed in this regard.
   • (b) Regarding the alleged anti-union dismissals in the municipality of Chimaltenango, the Committee regrets that the Government has provided no information on this allegation and urges it to do so without delay and to keep it informed of the current status of the dismissal cases brought before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
   • (c) Regarding the impediments to negotiating a new collective agreement between the Higher Electoral Court and the SITTSE, the Committee requests the Government to keep it informed with regard to the appeal submitted by the Court to the Third Chamber of Labour and Social Welfare, and developments in the negotiation of the new collective agreement between the Court and the SITTSE.
   • (d) Regarding the violation of the provisions of a collective agreement in the agricultural sector, and regretting that the Government has provided no information on the allegation in question, the Committee urges the Government to do so without delay and interested parties, including the concerned enterprise through the relevant employers’ organization, to indicate whether all outstanding issues have been resolved.

B. The Government’s reply

1. 363. In its communication of 12 November 2014, the Government sent its observations in relation to the alleged anti-union transfer of the trade union official Dr Nilda Ivette González Ruiz. In this regard, the Government provides the following information sent by the National Institute of Forensic Sciences (INACIF): (i) Dr González Ruiz had a fixed term contract that was set to expire automatically on 31 December 2010; (ii) the contract contained a geographic mobility clause stating that the worker could be required to work in another morgue in Guatemala, thereby making Dr González Ruiz’s transfer entirely legal; and (iii) because the national labour law was simple, transfers did not require any prior authorization. The Government also sent information provided by the labour inspectorate and the Auxiliary Services Centre of the Labour Law Administration stating that: (i) Dr González Ruiz initially submitted a complaint before the labour inspectorate; (ii) after exhausting all available administrative channels, the worker initiated legal proceedings for reinstatement before the 11th Labour and Social Welfare Court, alleging that she had been dismissed by the INACIF in retaliation for her trade union activities; (iii) following a decision on 16 January 2014, the Court ordered that she be reinstated; (iv) the INACIF appealed the decision before the judicial chamber; and (v) on 7 July 2014, Dr González Ruiz expressly, voluntarily and completely withdrew from the legal proceedings, in favour of the INACIF.
2. 364. Based on these facts, the Government states that at no point did the INACIF violate the ILO Conventions on freedom of association; its decisions were solely based on the need to ensure that it functioned properly. Due to Dr González Ruiz no longer pursuing legal action following her withdrawal, the Government requests that the Committee does not pursue its examination of this allegation.

C. The Committee’s conclusions

1. 365. The Committee recalls that this case concerns various allegations of anti-union acts including dismissals and acts contrary to the right to collective bargaining in both the public and private sectors.
2. 366. The Committee takes note of the Government’s observations related to the alleged anti union transfer of the trade union official, Dr Nilda González Ruiz, by the INACIF. In this respect, the Committee observes that the Government states that: (i) the transfer of Dr González Ruiz was as a result of the geographic mobility clause contained in her contract being implemented, and therefore it did not constitute an anti-trade union act of discrimination; and (ii) while Dr González Ruiz initiated legal proceedings in order to be reinstated, she voluntarily terminated such action in July 2014.
3. 367. The Committee takes note of this information, especially that Dr González Ruiz terminated her legal proceedings. In this regard, the Committee requests the complainant organization to provide information on the reasons for terminating her legal proceedings. In the absence of this information, the Committee will not pursue its examination of this allegation. Additionally, the Committee recalls generally that protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular, transfers, downgrading and other acts that are prejudicial to the worker [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 781] and that this principle should also be taken into consideration in those cases in which a geographic mobility clause is included in the contract.
4. 368. Regarding the impediments to negotiating a new collective agreement between the Higher Electoral Court and the Trade Union of Workers of the Higher Electoral Court (SITTSE), the Committee observes that this issue was also examined under Case No. 2203 [see 371st Report, March 2014, paras 527 and 533] where the Committee took note that, under the ruling of 12 April 2013 of the First Chamber of Labour and implemented by the Social Welfare of the Fourth Labour and Social Welfare Court, the collective agreement on conditions of work of the Higher Electoral Court entered into force on 8 May 2013. Under these circumstances, the Committee will not pursue its examination of this allegation.
5. 369. Regarding the allegations of anti-trade union dismissals in the municipality of Chimaltenango, the Committee regrets once again that, despite the time that has elapsed since the presentation of the complaint, no information has been provided by the Government in this regard and, particularly, no information has been provided on the current status of the dismissal cases brought before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department. In view of the fact that the Government has not sent observations on this aspect of the complaint, the Committee would first recall that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 817]. 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 soon as possible, its observations on the aforementioned allegations and to inform it on the legal procedures undertaken in relation to these allegations.
6. 370. Regarding the violation of the provisions of a collective agreement in the agricultural sector, and regretting once again that the Government has not provided any information on this allegation despite the time that has elapsed since the presentation of the complaint, the Committee once again urges the Government to do so without delay and invites the interested parties, including the concerned enterprise through the relevant employers’ organization, to indicate whether all outstanding issues have been resolved.

The Committee’s recommendations

1. 371. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organization to provide information on Dr González Ruiz’s reasons for terminating her legal proceedings. In the absence of this information, the Committee will not pursue its examination of this allegation.
   • (b) Regretting once again that the Government has not provided, despite the time that has elapsed since the presentation of the complaint, any information regarding the allegations of anti-trade union dismissals in the municipality of Chimaltenango, the Committee urges the Government to inform it, as soon as possible, of the current status of the dismissal cases before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
   • (c) Regretting once again that the Government has not provided any information on the violation of the provisions of a collective agreement in the agricultural sector, despite the time that has elapsed since the presentation of the complaint, the Committee once again urges the Government to do so without delay, and invites the interested parties, including the concerned enterprise through the relevant employers’ organization, to indicate whether all outstanding issues have been resolved.