Interim Report - Report No 376, October 2015

Case No 3042 (Guatemala) - Complaint date: 20-MAY-13 - Follow-up

Allegations: The complainant organization denounces numerous cases of unjustified refusal by the Ministry of Labour and Social Welfare to register trade unions, and also various cases of anti-union dismissals and anti-union acts in public institutions, most of them further to the establishment of trade union organizations

1. 488. The complaint is contained in communications dated 14 February 2012; 20 and 21 May, 30 July and 18 September 2013; and 22, 23, 25, 26, 28 and 29 May, and 1, 5 and 6 June 2014, presented by the Trade Union, Indigenous and Campesino Movement of Guatemala (MSICG).
2. 489. The Government sent its observations in communications dated 27 and 29 August and 17 December 2014, 15 April, 8 and 22 May, 22 June and 15, 16, 21 and 28 October 2015.
3. 490. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

Refusal by the labour administration to register trade union organizations

1. 491. In its various communications sent in the context of the present case, the complainant organization indicates that sections 218 and 220 of the Labour Code establish the procedure for the registration and recognition of the legal personality of trade union organizations. The aforementioned sections stipulate that: (i) the Labour Directorate-General shall examine, within a ten-day period, whether the constitution and deed of establishment of the trade union are in line with the law; (ii) a negative decision can only be issued where there are irremediable flaws in the application for registration, whereas remediable errors shall be communicated to the parties concerned so that they can be rectified. The complainant alleges that in practice the abovementioned sections encourage arbitrary and discretionary intervention by the Labour Directorate-General in that process, that the latter imposes a number of unlawful requirements causing union registration to take more than a year and registration to be refused in the majority of cases, especially where the unions applying for registration are affiliated to the MSICG. The complainant then refers to the observations of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) concerning ILO Convention No. 87 published in 2008, 2011 and 2012, which highlight difficulties in this respect and the need for the labour administration to adopt an approach that facilitates the registration of trade union organizations.
2. 492. The complainant also alleges that the Ministry of Labour and Social Welfare is refusing to register trade union organizations having members who have been unlawfully hired for the State of Guatemala on civil, temporary and/or piece-rate contracts financed under budget items 029, 021, 022 or 031, thereby infringing Articles 2 and 3 of Convention No. 87.
3. 493. In a communication dated 18 September 2013, the complainant also alleges that the Government’s policy of obstructing the registration of new trade unions and its lack of willingness to apply Convention No. 87 were demonstrated on 27 November 2012 by the Deputy Minister of Labour in a speech to the National Congress, when she maintained that: (i) it is the prerogative of the Ministry of Labour and Social Welfare to define who may enjoy the right to unionization, which depends, among other things, on the type of contracts enjoyed by the workers; (ii) the employers may oppose the establishment of trade union organizations by applying to the Ministry of Labour and Social Welfare and, in this way, their right of defence is observed; and (iii) on the basis of an employer’s objections, the Ministry decides which workers may form a union and which may not, depending on the legal status of the contractual relationship. In this regard, the complainant is of the view that the labour administration goes beyond its judicial functions, in so far as the powers granted by the Labour Code are exclusively concerned with the administrative process of registration.
4. 494. To illustrate the State’s alleged anti-union policy denying workers the right to join unions, the complainant describes in detail the process which it claims led to the unjustified refusal to register eight trade union organizations.

Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG)

1. 495. The complainant organization states that: (i) the application for the registration of CENTRIMAG was submitted on 17 June 2013 in compliance with all the legal requirements; (ii) on 26 July 2013, with reference to section 215(c) of the Labour Code, which requires that sectoral trade unions account for at least “50 per cent plus one” of the workers in that sector, the Worker Protection Department denied CENTRIMAG the status of sectoral trade union, ordering it to modify its designation and constitution in order to apply for registration as an enterprise trade union; (iii) on 6 August 2013, the trade union lodged an appeal, which was also turned down; (iv) in parallel, the MSICG filed an action to have section 215(c) of the Labour Code declared unconstitutional by the Constitutional Court; and (v) although a decision on the case is still pending, the Constitutional Court has refused a temporary suspension of the abovementioned section of the Labour Code, despite the fact that the MSICG has based its case on Convention No. 87 and on relevant pronouncements by the ILO supervisory bodies.
2. 496. The complainant goes on to say that CENTRIMAG has over 500 members; however, to comply with the requirements of section 215(c) of the Labour Code, it would need to have a membership of some 75,000 workers, with each of them signatory to the deed of establishment. This demonstrates that it is absolutely impossible to establish sectoral trade unions in Guatemala, with the result that the trade union movement in the country remains fragmented and weak.

Western Indigenous and Campesino Federation (CICO)

1. 497. The complainant organization states that: (i) CICO, affiliated to the MSICG, was established on 12 October 2013 for the purpose of developing trade union organizations by branch of activity, thereby preventing the fragmentation of trade union action; (ii) CICO comprises farm workers from several departments including Huehuetenango, San Marcos, Quiché and Totonicapán; (iii) the application for the registration of CICO was submitted to the Director-General of Labour on 7 November 2013; and (iv) on 22 May 2014, the Ministry of Labour and Social Welfare adopted a decision which makes the registration of the organization contingent on the removal of any mention of “men and women workers” from its constitution and requires that the profession or position of the union members should be specified. The complainant states that this decision violates the autonomy of trade union organizations, as enshrined in Convention No. 87.

Southern Campesino Federation

1. 498. The complainant organization states that: (i) the Southern Campesino Federation, affiliated to the MSICG, was established on 4 September 2012 with the purpose of developing trade union organizations by branch of activity, thereby preventing the fragmentation of trade union action; (ii) after a delay of several months due to numerous changes to the union’s constitution required by the Ministry of Labour and Social Welfare, the Ministry’s Worker Protection Department issued an opinion on 1 February 2013 in favour of registration and this was sent to the Labour Directorate-General; (iii) however, it was only on 18 July 2013 that the aforementioned department issued a new order for the deed of establishment to be redrafted and requesting new amendments to the union’s constitution, including with regard to issues that the trade union had already corrected; and (iv) the appeal lodged by the trade union was declared inadmissible by the Deputy Minister of Labour, leaving court action as the only possible remedy. The complainant adds that over one year since its establishment the Southern Campesino Federation and its over 3,500 members are unable to exercise their rights even though the Labour Code requires the labour administration to carry out the registration procedure within ten days, and that this case reflects a policy not to register trade unions affiliated to the MSICG.

Teachers’ Federation of Chiquimula (CETRAMACH)

1. 499. The complainant organization states that: (i) on 18 July 2013, the MSICG formed the Teachers’ Federation of Chiquimula (CETRAMACH) and hundreds of teachers participated in the launch; (ii) on 23 July 2013, the application for the trade union’s registration, which was backed up by the fact that some 300 workers had taken out membership, was sent to the Director-General of Labour; (iii) despite the fact that the Labour Code provides that the trade union registration process cannot take more than ten days, several months passed without the Ministry sending any notification, despite the various written requests made by the organization; (iv) in view of this silence, the MSICG brought an amparo action (for the protection of constitutional rights) against the Director General of Labour on 19 December 2013; and (v) in its memorandum to the Court on 28 January 2014, the Director-General of Labour argued that the trade union’s registration application was being verified and that the Labour Inspectorate-General was checking that the members of the union were indeed Ministry of Education workers, that they did not occupy positions of trust and that there had been no resignations from the union.
2. 500. The complainant adds that: (i) by means of these checks, the Director-General of Labour is assuming powers that overstep the legal provisions, since he or she only has the authority to check whether the trade union’s deed of establishment and constitution comply with the law, which is why only ten days are allowed for the completion of this task; (ii) the statements of the Director-General prove that he notified the employer of the identity of the members, with the subsequent risk of dismissal that this entails; (iii) the administration’s practice also means that it is the employer who decides which employees hold positions of trust and therefore who can exercise their right to join a union; and (iv) the case of CETRAMACH illustrates the arbitrary attitude of the labour administration to the registration of trade union organizations, given that its actions vary depending on the leanings of the trade union organization concerned.

Autonomous Union of Teachers of Guatemala (SAMGUA)

1. 501. The complainant organization states that: (i) SAMGUA, affiliated to the MSICG, sent its registration application to the Ministry of Labour and Social Welfare on 15 November 2012; (ii) on 5 February 2013, the Ministry notified the trade union that, to be registered, it would need to amend section 8 of its constitution, which established that workers at the Ministry of Education can become members of the union regardless of the type of contract through which the employment relationship has been formalized, in accordance with the ILO Employment Relationship Recommendation, 2006 (No. 198); and (iii) when the trade union refused to modify its constitution as indicated, the Ministry of Labour and Social Welfare confirmed on 24 July 2014 that it would not proceed with the trade union registration process.

Guatemalan National Union of Naturopathic Practitioners (GNGMN)

1. 502. The complainant organization alleges that the Ministry of Labour and Social Welfare has obstructed the registration of the Guatemalan National Union of Naturopathic Practitioners (GNGMN) by obliging it to reconvene its constituent assembly three times and prohibiting the inclusion in its constitution of the right to engage in collective bargaining. When the workers refused to accept this, the Ministry rejected the trade union’s application for registration.

Authentic National Union of Workers at the Ministry of Public Health and Social Assistance

1. 503. The complainant organization alleges that: (i) on 27 May 2013, the application to register the trade union was submitted to the Labour Directorate-General; (ii) on 3 June 2013, the Ministry of Labour and Social Welfare notified the organization that it should modify its scope of action, divesting the union of its national status and preventing workers in other workplaces belonging to the same entity from joining the union as well as abolishing the branches provided for in its constitution; and (iii) in response to the union’s dissent, on 23 June 2013 the Ministry of Labour and Social Welfare upheld its refusal to proceed with the registration process.

Union of Workers of the Workers’ Financial Group and other bodies comprising the same economic unit (SITRAGFIT)

1. 504. The complainant organization states that: (i) on 8 July 2013, the Ministry of Labour and Social Welfare was notified that SITRAGFIT had been established; (ii) the enterprise immediately started the process to dismiss the founding members, informing them that they could avoid being dismissed by signing a letter of resignation from the trade union; (iii) on 16 July 2013, the Ministry of Labour and Social Welfare demanded that the union amend its constitution, eliminating in particular the possibility for the union to have branches and for leaders to be elected to the latter; (iv) in response to the trade union’s refusal to make changes in violation of freedom of association, the Ministry of Labour and Social Welfare shelved the file without registering the union; (v) in the majority of cases of dismissal of the founders of SITRAGFIT, the courts illegally delayed issuing reinstatement orders, allowing 11 months to pass from the complaint being lodged without the employees being reinstated and with no certainty about the status of the proceedings; and (vi) in the few cases in which the judges ordered reinstatement, the employer failed to comply unless the judges issued writs of execution or referred the case to the criminal courts. The complainant adds that SITRAGFIT is the first financial group trade union in the country and the first in the banking sector for decades, and that the dismissals are due to the illegal disclosure of information to the employer concerning those involved in establishing the trade union.
2. 505. In two communications dated 14 February 2012 and 18 September 2013, the complainant organization also included two lists of trade union organizations whose registration had allegedly been refused by the labour administration without justification. The first list refers to the registration applications submitted in 2010, which were rejected either for irrelevant reasons of form or owing to interference by the labour administration in the autonomy of the trade union organizations:
   • (1) Union of Workers at Imperia Investments and Services SA
   • (2) Union of Municipal Workers of Fray Bartolomé de las Casas
   • (3) Union of Municipal Public Servants of San Lorenzo Suchitepéquez
   • (4) Union of the Ministry of Education of the Department of Alta Verapaz
   • (5) Union of Workers at the Duruelo Coeducational School Establishment (known as the “Ramón Adán Sturtze Workers’ Union”)
   • (6) Union of Financial Managers at the Ministry of Public Health and Social Assistance
   • (7) Union of Technical and Administrative Workers at the Western Ministry of Education
   • (8) Union of the Ixcan Quiché Health Sector
   • (9) Workers’ Union at the Tax Administration Supervisory Authority
   • (10) Union of Workers at San Marcos Hospital in the Department of San Marcos
   • (11) National Union of Workers at the Executive Secretariat of the National Coordinating Authority for Disaster Reduction
   • (12) Union of Administrative and Financial Managers at the Ministry of Public Health and Social Assistance
   • (13) Union of Municipal Workers of Chiquimula in the Department of Chiquimula
   • (14) Union of Workers at San Marcos National Hospital in the Department of San Marcos
   • (15) United Workers’ Union of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos
   • (16) Guatemalan Union of Labour Supporters and Defenders of Human Rights
3. 506. The second list refers to unsuccessful registration applications submitted in 2012 and 2013. The complainant organization adds that in the last ten cases mentioned, the registration was not granted on account of the opposition expressed by the employer to the registration of the respective trade union:
   • (1) Union of Workers and Employees at the Ministry of Education and Private Schools
   • (2) Union of Workers of the Municipality of Santa Lucía Milpas Altas
   • (3) Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa
   • (4) Union of “Teachers for Change”
   • (5) Union of Workers at Avandia SA
   • (6) Union of Security Workers and Officials at the Public Prosecutor’s Office
   • (7) Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos
   • (8) Union of Workers of the Municipality of Pachulum
   • (9) Union of Workers of the Municipality of Villa de Tejutla in the Department of San Marcos
   • (10) Union of Workers of the Municipality and Electricity Company of Guastatoya El Progreso
   • (11) Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Sport
   • (12) Teachers’ Union of Jalapa
   • (13) Union of Workers of the Municipality of Palín in the Department of Escuintla
   • (14) Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Izabal
   • (15) Union of Workers of the Municipality of Santa Cruz El Chol in the Department of Baja Verapaz
   • (16) Union of Workers of the Municipality of San Miguel Tucurú in the Department of Alta Verapaz
   • (17) Union of Workers of the Municipality of Usumatlán
   • (18) Union of Workers and Employees of the Municipality of San Carlos Sija in the Department of Quetzaltenango
   • (19) Union of Collection Agents at Cable Star SA
   • (20) Union of Workers at SEAK HWA SA
   • (21) General Union of Municipal Employees of Coatepeque
   • (22) “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority
   • (23) Union of Workers at the Departmental Education Directorate of Alta Verapaz
   • (24) Union of Workers of the Municipality of San José El Rodeo in the Department of San Marcos
   • (25) Union of Workers of the Municipality of San Pedro Ayampuc
   • (26) Union of Workers at the Ministry of the Interior
   • (27) Union of Workers at the Port of Santo Tomás de Castilla
   • (28) Union of Workers at RENAP Guatemala
   • (29) Union of Workers of the Directorate-General for Sports and Recreation
   • (30) Union of Workers at the Department of Conservation and Restoration of Pre-Hispanic Archaeological Sites
   • (31) Union of Workers at Ternium Internacional Guatemala SA
   • (32) Union of Workers of the Guatemalan Heart Disease Association
   • (33) “Pro Dignity” Workers’ Union at the Tax Administration Supervisory Authority

Denunciation of a number of cases of discrimination and anti-union acts within various state bodies

Union of Workers of the Guatemalan Heart Disease Association (SIDETRALICO)

1. 507. In a communication dated 18 September 2013, the complainant organization alleges that: (i) on 8 August 2012, the employees who founded SIDETRALICO informed the labour administration of the establishment of the trade union with the aim of enjoying guarantees of trade union immunity under current legislation that protects the founders of trade unions from anti-union dismissal; (ii) the labour administration leaked this information to the employer, who dismissed almost all the founders of SIDETRALICO (Ms Ana María Taracena Ríos, Ms Aura Elena Sosa, Mr Carlos Enrique Soto Menegazo, Mr Carlos René Herrera Donis, Ms Castula Isabel Figueroa Aguirre, Ms Dora Herlinda Patzan Arriaga, Mr Fernando Enrique Niz López, Ms Helda Zulema Ruano Najera, Ms Isabel Figueroa de Polanco, Ms Karen Alicia Morales Mortaya, Ms Magdalia Toc Flores, Mr Marco Tulio Amado, Ms María Mercedes Soto Marroquin, Ms Mildred Amarilis Melgar Cárcamo, Ms Milvia Lucrecia Carrillo Reyes de Alvarado, Ms Miriam Araceli Rivas Barrios, Ms Rosly Elizabeth Pellecer, Ms Sandra Morales de Sandoval and Mr Teddy Daniel Fletcher Alburez), fraudulently backdating the dismissal date to 7 August 2012; (iii) on 10 August 2012, the workers, who were unaware of their dismissal, were denied access to the institution; (iv) in the following days, the employer submitted to the labour administration its objection to the establishment of the trade union; (v) on 10 December 2012, the labour administration refused the registration of SIDETRALICO; (vi) the employees brought an amparo action (for the protection of constitutional rights) on grounds of violation of freedom of association but the court did not grant it despite the seriousness of the allegations; (vii) of the 19 employees dismissed, 14 contested their dismissal before the labour courts and obtained first-instance orders for reinstatement, which the employer did not respect, except in the case of Ms Ana M. Taracera, though she was dismissed once again shortly after being reinstated; (viii) the employer is appealing against the first-instance reinstatement rulings; and (ix) the Third Chamber of the Labour and Social Welfare Court of Appeal is not treating the parties equally, admitting illegal evidence for the employer and rejecting evidence submitted by the workers. Lastly, the complainant maintains that the actions of both the Ministry of Labour and Social Welfare and the judicial authorities demonstrate the existence of a state policy which consists in making it impossible to establish trade union organizations.

Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ)

1. 508. In a communication dated 25 May 2014, the complainant organization alleges that: (i) the Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ) was officially registered on 29 December 2011; (ii) on 10 February 2012, in connection with a socio-economic labour dispute, Mr Luis Antonio Mérida Ochoa, the union general secretary, was dismissed; (iii) his reinstatement was ordered by the courts on 23 February 2012, although the order has not yet been complied with; (iv) on 24 April 2012, the head of the Peace Secretariat of the Office of the President of the Republic requested the Minister of Labour to initiate regular proceedings for dissolution of the trade union, claiming that the union members were contract workers hired under budget item 29 and as such did not enjoy the right to join a trade union. On this occasion, the head of the Peace Secretariat listed all of the trade union’s founding members, which was information that could only have been obtained from the Ministry of Labour and Social Welfare; (v) on 29 May 2012, the following workers were dismissed: Mr José Roberto Paz Guilarte, Ms María del Rosario Toj Zacarias, Mr Carlos Humberto Morales López, Mr Alvaro René Sosa Ramos, Mr Armando Pérez Trabanino, Mr Pedro Celestino Cutzal Son, Mr José Laínes Jiménez, Mr Azarías Perencén Acual, Mr Luis Armando Huertas Cruz and Mr Daniel Eduardo Vásquez Cisneros, who make up almost half of the members of the trade union, leaving less than 20 active employees who are union members; (vi) in addition, on 23 April 2012, the Peace Secretariat of the Office of the President of the Republic applied through the courts for the annulment of the collective agreement signed with SITRASEPAZ which had been approved by the public administration on 9 November 2011; (vii) on 30 July 2013, the labour courts confirmed the validity of the collective agreement; and (viii) as of February 2012, the union’s general secretary, Mr Luis Antonio Mérida Ochoa, has been the subject of a number of unfounded criminal complaints made by the Peace Secretariat of the Office of the President of the Republic, which shows that there is a plan to criminalize the union’s activity.

Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH)

1. 509. In a communication dated 1 June 2014, the complainant organization alleges that: (i) an application for the registration of SITRAPDH was submitted on 16 May 2013; (ii) on 21 May, notice was given that Ms Eva Luz Urizar Solís, Mr Julio César Fernández Villagrán, Ms Karla Joanna García Santiago, Ms Ana Lucia del Carmen Carrascosa Barrera, Mr Julio Mizraim Tzul Hernández, Ms Sandra Bernarda Baquías Rojas de Yax and Ms Sonia Gabriela Quiroa Morales joined the movement to establish the trade union; (iii) in an act of anti-union reprisal, these workers were dismissed on 29 May 2013; (iv) on 29 May 2013, the Labour Inspectorate-General confirmed the anti-union nature of the dismissals and requested the Prosecutor’s Office to reinstate the workers within two days; (v) despite the fact that the request was not met, the Labour Inspectorate failed to institute infringement proceedings through the labour and social welfare courts; (vi) on 3 June 2013, the dismissed workers brought actions before the Labour and Social Welfare Enforcement Court of First Instance of the Department of Quetzaltenango; (vii) despite the fact that, under the law, the reinstatement of workers must be decreed and executed within 24 hours, the judge imposed a number of illegal procedural obstacles to delay the process, further to which, at the date on which the complaint was lodged, the first-instance ruling had still not been issued; and (viii) the amparo action (for the protection of constitutional rights) brought by the workers for lack of legal protection also remains pending.

Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG)

1. 510. In a communication the complainant organization alleges that: (i) STAYSEG and SITRADEMEG tried to conduct collective bargaining with their employer to improve the precarious conditions of work of administrative staff at the Ministry of Education and these efforts led to a series of anti-union reprisals; (ii) Mr Byron Rolando Fuentes León, a SITRADEMEG official, was dismissed on 14 May 2013 while completing the direct procedures for negotiating a collective accord on conditions of work; (iii) as a result of delaying tactics by the State, both the National Civil Service Board and the Labour, Social Welfare and Family Court of First Instance of the Department of Chiquimula have still not issued a ruling on the actions brought by the worker against his dismissal; (iv) on 25 March 2013, the Ministry of Education proceeded to dismiss Ms María Magdalena Aju Upun, a member of the advisory board of STAYSEG, and the legal action brought before the Fourth Labour and Social Welfare Court of the Department of Guatemala did not secure her reinstatement; and (v) in response to the request from STAYSEG to negotiate a collective agreement on conditions of work, on 4 January 2013 the Ministry of Education requested judicial authorization for the trade union general secretary, Mr Jorge Byron Valencia Martínez, to be dismissed in relation to acts that allegedly occurred on 19, 20 and 21 January 2012, despite the fact that, under the Civil Service Act, the employer does not have the authority to impose sanctions against an employee after three months.

“United for Development” Workers’ Union at the Office of the Comptroller-General (SITRAUD)

1. 511. In a communication dated 5 June 2014, the complainant organization alleges that, in reprisal for the request for negotiation of a collective accord relating to conditions of work, the Office of the Comptroller-General, a state body, proceeded in 2012 to dismiss several leaders and members of the trade union and repeatedly refused to comply with the reinstatement orders handed down by the courts of first and second instance. The complainant provides details in this regard of the situation of Mr Julio César Monzón Ramírez, member of SITRAUD, indicating that: (i) the reinstatement of the worker was ordered by the court of first instance on 22 December 2012; (ii) the reinstatement was confirmed by the court of second instance in August 2013; (iii) between August and October 2013, executors came to the Office of the Comptroller-General on three occasions to ensure that the reinstatement order would be enforced, but the Office did not comply with the order; and (iv) following the repeated refusal of the Office of the Comptroller-General, the judge failed to reissue the reinstatement orders and to take the necessary measures to enforce them. The complainant organization adds that a similar situation emerged with regard to the workers Mr Juan Domingo Pinula Santay and Mr José Ramos Méndez, who are members of SITRAUD.

B. The Government’s reply

Allegations concerning applications for trade union registration

1. 512. In a communication dated 29 August 2014, the Government indicates that: (i) the Ministry of Labour and Social Welfare is an institution that serves workers and employers and that the trade union registration process has been codified in legislation; (ii) under section 218(d) of the Labour Code, the Labour Directorate-General is under the obligation to check that the trade unions being established comply with the legally established requirements; and (iii) in a speech to the National Congress on 27 November 2012, on being questioned about the right of employers to oppose a trade union’s registration, the Deputy Minister of Labour emphasized that anybody can exercise his/her constitutional right of petition and submit requests to the authorities, without it having a favourable or unfavourable impact on the decision issued by the administration. The Government also forwards the statement of the Labour Inspector-General, which, in reference to the registration process for trade unions, indicates that the Labour Inspectorate-General works with the Labour Directorate-General to check the status of applicant workers, since it is only possible to establish whether there is a real or false labour relationship through direct checks, and it is not the responsibility of the administrative body but of the judiciary to conclude whether or not such a relationship exists, based on the principle of the primacy of actual conditions.
2. 513. In a communication dated 27 August 2014, the Government provides its observations concerning the alleged refusal to register the Autonomous Union of Teachers of Guatemala (SAMGUA), indicating that: (i) section 8 of the draft constitution of SAMGUA specifies that, to join the union, it is necessary to be a worker in the service of the Guatemalan State through the appointing authority, the Ministry of Education, “regardless of the type of contract through which the employment relationship has been formalized in accordance with ILO Recommendation No. 198”; (ii) the Worker Protection Department (part of the Labour Directorate-General) established that section 8 of the union’s constitution must be amended inasmuch as Ministerial Decision No. 215-2004 of the Ministry of Public Finance establishing budget classifications for the public sector in Guatemala indicates that technical and professional services subject to the payment of fees are provided by contract staff who are not covered by a dependent employment relationship and, consequently, are not eligible for membership of a public-sector union; and (iii) the Worker Protection Department also requested a further four amendments to rectify errors contained in the union’s constitution and to ensure its full compliance with the legal provisions. In view of the above, the Government considers that there are insufficient grounds to consider that the refusal to register constitutes a violation of trade union rights.
3. 514. In a communication dated 15 April 2015, the Government provides its observations regarding the alleged refusal to register the Teachers’ Federation of Chiquimula (CETRAMACH), indicating that, in a ruling of 18 March 2014, the First Chamber of the Labour and Social Welfare Court of Appeal, acting as an amparo court, ordered the Labour Directorate-General to issue a decision on CETRAMACH’s application for registration within five days, and that on 15 July 2014 the Labour Directorate-General rejected the application. With respect to the decision by the Labour Directorate-General, the Government maintains that: (i) on 18 July 2013, a total of 20 people met with the aim of establishing CETRAMACH and setting up its provisional executive committee; (ii) on 23 July 2013, the CETRAMACH provisional executive committee sent a communication to the Labour Directorate-General requesting it to note that 278 workers had been party to the process of establishing the trade union and including a copy of the record of their memberships; (iii) the Directorate-General of Labour ruled that the memberships could not be taken into consideration when examining the registration application because they were not accompanied by a clear and precise expression of the members’ wish to form the union, as required by sections 216(a) and 220 of the Labour Code; that the provisional executive committee of a trade union does not have the authority to receive registration applications; and that, in accordance with section 220(a) of the Labour Code, other workers who were not party to the trade union’s deed of establishment could not be included in the procedure for establishing the trade union; (iv) based on checks carried out by the Labour Inspectorate-General, the Labour Directorate-General noted that 14 out of the 20 founders of the union were teachers/directors with tenure and, because they represented the employer’s interests, they could not participate in the establishment of the trade union, in line with section 212 of the Labour Code; and (v) on the basis of the above, the Labour Directorate-General decided that the requirement to have 20 founding members had not been met, nor the legal conditions to register CETRAMACH.
4. 515. In a communication of 8 May 2015, the Government sends its observations regarding the alleged refusal to register the Southern Campesino Federation (CCS). The Government indicates that: (i) the CCS Provisional Executive Committee submitted on 24 September 2012 the documentation for the recognition of its legal personality, the approval of its constitution and its registration; (ii) on 1 February 2013, after having issued two orders for the applicant trade union to correct a number of errors, the Worker Protection Department of the Ministry of Labour and Social Welfare approved the recognition of its legal personality, its constitution and its registration, forwarding its file to the Ministry’s Labour Directorate-General; (iii) on 18 July 2013, the Labour Directorate-General issued Order No. 892-2013 requesting the CCS Provisional Executive Committee to correct a number of errors, in order to be able to continue with the registration process; (iv) the CCS Provisional Executive Committee filed an appeal against said order, but it was declared inadmissible by the Deputy Minister of Labour on 7 August 2013, under Order No. 286 2013; and (v) the CCS filed amparo proceedings against the aforementioned order but these were dismissed on two occasions by the Supreme Court of Justice.
5. 516. The Government adds that the Supreme Court of Justice considered that: (i) the Ministry of Labour and Social Welfare acted in accordance with the law, considering that the trade union could not bring an appeal against the Ministry’s order requiring the CCS to comply with a series of legal requirements before continuing with the procedure for registration, in so far as the appealed order referred to simple procedural matters that did not impinge upon the complainant’s rights; and (ii) the trade union had moreover not indicated how the Ministry’s failure to examine the appeal violated its constitutional rights. Lastly, the Government indicates that the CCS was not registered due to non-compliance with basic requirements by the applicant trade union and that delays in the administrative proceedings resulted from the various administrative and judicial appeals filed by the CCS.
6. 517. In a communication of 8 May 2015, the Government sends its observations regarding the alleged refusal to register the Guatemalan National Union of Naturopathic Practitioners (GNGMN). The Government denies that the Labour Directorate-General of the Ministry of Labour and Social Welfare has requested the GNGMN to reconvene its constituent assembly and to remove from its constitution the reference to collective bargaining. The Government adds that, on 29 May 2014, it proceeded with the registration of the GNGMN under Order No. 11-2014.
7. 518. In a communication dated 16 October 2015, the Government sends its observations on the application for registration of the Western Indigenous and Campesino Federation (CICO). The Government indicates that: (i) the Labour Directorate-General at the Ministry of Labour and Social Welfare received the application for registration from CICO on 7 November 2013; (ii) on 20 November 2013, the National Worker Protection Department at the Ministry sent an order to the applicant trade union requiring it to make amendments to its deed of establishment and draft constitution; (iii) after the six-month period prescribed by law had elapsed without any response from the applicant trade union, the Worker Protection Department issued a new order on 22 May 2014 giving the applicant trade union a deadline of ten days to incorporate the requested changes; (iv) on 30 May 2014, the lawyer of the applicant trade union submitted a brief questioning whether the law had been correctly applied by the Ministry and refusing to incorporate the aforementioned changes; and (v) on 2 June 2014, the Labour Directorate-General issued an order rejecting the brief submitted by the lawyer of the applicant trade union on the grounds that it had not been signed by any officer of the union, and confirming that the application for registration had been shelved on the grounds that the six-month period prescribed by law had elapsed. Lastly, the Government indicates, on the basis of the above, that the non-registration of CICO is due solely to the applicant trade union’s failure to comply with the relevant requirements of the labour legislation.
8. 519. In a communication dated 21 October 2015, the Government submits its observations regarding the Union of Workers of the Financial Group and other entities that form the same economic unit (SITRAGFIT). The Government indicates that: (i) the Ministry of Labour and Social Welfare received the application for the registration of SITRAGFIT on 8 July 2013; (ii) throughout the months of August and September, the Ministry received seven resignations of trade union members, who have expressed opposition to the creation of the union; (iii) many of such workers, among whom is a person registered as a founding member of the union, indicated that their consent had been improperly obtained; (iv) three members of the Provisional Executive Committee of the Union were also leaders of another organization, the Union of Bank Employees Workers (SEBT), which is contrary to article 212 of the Labour Code which prohibits dual union membership; (v) the charter of the union indicates that it may be joined by workers of six companies that form the same economic group but its founding members only come from three of these companies, thus violating the requirement that enterprise unions, which may include one or more of the same companies, are composed of workers who serve in them; and (vi) based on the various points indicated above, the Ministry of Labour and Social Welfare decided to reject the application to register SITRAGFIT.
9. 520. Regarding the allegations of anti-union dismissal of the founding members of the union and failure to comply with reinstatement orders, the Government indicates that the legal proceedings related to the reinstatements are pending because of appeals and application of the writ of amparo.
10. 521. In a communication dated 28 October 2015, the Government sends observations relating to the request for registration of the Federation of Workers of the Export-processing Industry of Guatemala (CENTRIMAG). The Government indicates that the refusal to register CENTRIMAG is based on non-compliance with section 215(c) of the Labour Code, which requires that industrial unions affiliate 50 per cent plus one workers of the sector of activity, whereas the newly established union had only 23 trade union members.
11. 522. The Government also includes the information provided by the Labour Directorate-General concerning the list of 33 cases in 2012 and 2013 – contained in the complainant organization’s allegations – in which trade union registration was refused:
    • (1) Union of Workers and Employees at the Ministry of Education and Private Schools
    • The file has been shelved. The trade union’s legal personality has not been recognized owing to irremediable errors and flaws, in particular because of the attempt to group together in a single union employees of state institutions and private schools, which is not in conformity with the provisions of the Act concerning unionization and strike regulation for state workers and section 215 of the Labour Code. Analysis of both legislative texts shows that no category exists which might allow for the establishment of a trade union organization with both public servants and private-sector workers.
    • (2) Union of Workers of the Municipality of Santa Lucía Milpas Altas
    • The file has been shelved because more than six months have elapsed without any activity, in accordance with section 5 of the Administrative Litigation Act, which states that “files or proceedings in which the parties do not act for over six months shall be shelved if the administrative body has carried out all duties incumbent upon it and has sent notification”.
    • (3) Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa
    • The file is before the Labour Directorate-General for the review of educational staff lists prior to recognition of the trade union, in accordance with section 212(2) of the Labour Code, which stipulates that nobody may belong to two or more trade unions at the same time.
    • (4) Union of “Teachers for Change”
    • The file has been shelved because the members of the union’s executive committee did not comply with an order of 19 March 2012 from the Labour Directorate-General and because, in accordance with section 5 of the Administrative Litigation Act, more than six months have elapsed since the last notification.
    • (5) Union of Workers at Avandia SA
    • The file has been shelved on account of failure to comply with an order from the Labour Directorate-General and also because, in accordance with section 5 of the Administrative Litigation Act, more than six months have elapsed since the last notification.
    • (6) Union of Security Workers and Officials at the Public Prosecutor’s Office
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (7) Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos
    • The file has been shelved because an order from the Worker Protection Department established that the documentation submitted does not comply with the legal requirements, inasmuch as 27 days elapsed between the date on which the general assembly for the establishment and formation of the trade union was held and the date on which the documentation was sent to the information and document reception unit at the general secretariat of the Ministry of Labour and Social Welfare, in breach of the provisions of section 218(a) of the Labour Code, which sets a maximum deadline of 20 working days.
    • (8) Union of Workers of the Municipality of Pachulum
    • The file has been shelved and the application for recognition of the legal personality and registration of the union was rejected, because the Labour Directorate-General established that four of the 20 founding members were municipal police officers and, under the law on municipal service, municipal police officers are considered as employees occupying positions of trust, which is an irremediable flaw in the establishment of the trade union.
    • (9) Union of Workers of the Municipality of Villa de Tejutla in the Department of San Marcos
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (10) Union of Workers of the Municipality and Electricity Company of Guastatoya El Progreso
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (11) Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Sport
    • The file has been transferred to the Technical and Legal Advisory Board of the Ministry of Labour and Social Welfare as amparo action No. 62-2013, assigned to the second court official, against Supreme Court Decision No. 228-2012.
    • (12) Teachers’ Union of Jalapa
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (13) Union of Workers of the Municipality of Palín in the Department of Escuintla
    • The file was shelved because the registration documents were submitted 22 days after the trade union’s constituent assembly, instead of the 20 days required under section 218(a) of the Labour Code.
    • (14) Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Izabal
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (15) Union of Workers of the Municipality of Santa Cruz El Chol in the Department of Baja Verapaz
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (16) Union of Workers of the Municipality of San Miguel Tucurú in the Department of Alta Verapaz
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (17) Union of Workers of the Municipality of Usumatlán
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (18) Union of Workers and Employees of the Municipality of San Carlos Sija in the Department of Quetzaltenango
    • The file has been closed, with the registration of legal personality (No. 2238, p. 001030, book 23, 23 June 2013).
    • (19) Union of Collection Agents at Cable Star SA
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (20) Union of Workers at SEAK HWA SA
    • The file has been shelved, in accordance with section 5 of the Administrative Litigation Act, because more than six months have elapsed since the last notification.
    • (21) General Union of Municipal Employees of Coatepeque
    • The file has been shelved in accordance with Order No. 1S27-2012 of the Labour Directorate-General, issued on the basis of Order No. 232-2012 of the Worker Protection Department.
    • (22) “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority
    • The file has been shelved after being declared inadmissible owing to the presence of employees deemed to be occupying positions of trust.
    • (23) Union of Workers at the Education Directorate of the Department of Alta Verapaz
    • The file has been shelved because the relevant documents were submitted after the 20-day deadline established in section 218(a) of the Labour Code.
    • (24) Union of Workers of the Municipality of San José El Rodeo (Department of San Marcos)
    • The file has been shelved after recognition of its legal personality was declared inadmissible owing to the presence of employees deemed to be occupying positions of trust and the absence of the legally required number of members (20).
    • (25) Union of Workers of the Municipality of San Pedro Ayampuc
    • The file was registered on 26 January 2012. Union members then submitted an application for dissolution of the trade union, claiming that the organization no longer had the minimum number of members, which was contested by the union’s labour and disputes secretary, thereby giving rise to an internal dispute which it is not the labour administration’s role to resolve. Legal proceedings are in progress in the First Chamber of the Labour and Social Welfare Court of Appeal.
    • (26) Union of Workers at the Ministry of the Interior
    • The file has been closed, with the registration of legal personality No. 2139, book 22, 2 December 2011.
    • (27) Union of Workers at the Port of Santo Tomás de Castilla
    • The file has been transferred to the Technical and Legal Advisory Board of the Ministry of Labour and Social Welfare as amparo action No. 687-2013, assigned to the third court official.
    • (28) Union of Workers at RENAP Guatemala
    • The file has been closed, with the registration of legal personality (No. 2193, pp. 379–393, book 23, 12 May 2012).
    • (29) Union of Workers of the Directorate-General for Sports and Recreation
    • The file has been cancelled, since the union’s executive committee withdrew the registration application.
    • (30) Union of Workers at the Department of Conservation and Restoration of Pre-Hispanic Archaeological Sites
    • The file has been closed, with the registration of legal personality No. 2196, pp. 585–598, book 23, 14 May 2012.
    • (31) Union of Workers at Ternium Internacional Guatemala SA
    • The file is before the Technical and Legal Advisory Board of the Ministry of Labour and Social Welfare, in accordance with a Constitutional Court order to examine the substance of the appeal.
    • (32) Union of Workers of the Guatemalan Heart Disease Association
    • The file is before the Technical and Legal Advisory Board of the Ministry of Labour and Social Welfare, in accordance with a Constitutional Court order to examine the substance of the appeal.
    • (33) “Pro Dignity” Workers’ Union at the Tax Administration Supervisory Authority (SBFBOSAT)
    • The file has been transferred to the Technical and Legal Advisory Board of the Ministry of Labour and Social Welfare as an amparo action against Decision No. 12 2012.

Allegations concerning dismissals and other anti-union acts

Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ)

1. 523. In a communication dated 17 December 2014, the Government provides its observations concerning the Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ). The Government indicates that: (i) the termination of the temporary supervisory services contract of the general secretary of the union, Mr Luis Antonio Mérida Ochoa, does not constitute an act of anti-union reprisal; (ii) the Supreme Court of Justice rejected the application for the reinstatement of Mr Luis Antonio Mérida on the grounds that his functions of executive director and director of conciliation at the Peace Secretariat gave him the undoubted status of a worker occupying a position of trust and a representative of the employers and that therefore he could not legally hold office as a trade union official; (iii) the other alleged anti-union dismissals stem from the closure on 25 May 2012 of the archives directorate at the Peace Secretariat; (iv) the Ministry of Labour and Social Welfare did not notify the Peace Secretariat of the names of the union founders; it was the union’s own general secretary who included these particulars in his legal action against the Secretariat dated 21 February 2012; (v) the application for judicial dissolution of the union was made on the grounds that its founders were contract staff hired under budget item 29 and therefore did not have the official status of employed workers; (vi) the application to invalidate the collective agreement also stems from the fact that the agreement was signed by persons who did not have the official status of employed workers and the case is pending before the Supreme Court of Justice; and (vii) the criminal proceedings brought against Mr Luis Antonio Mérida Ochoa are not of an anti-union nature but, in accordance with section 298 of the Code of Criminal Procedure, are obligatory inasmuch as they are concerned with possible offences that are liable to public prosecution.

“United for Development” Workers’ Union at the Office of the Comptroller-General (SITRAUD)

1. 524. In communications dated 22 May and 22 June 2015, the Government provides its observations concerning the allegations of anti-trade union dismissals against members of the “United for Development” Workers’ Union at the Office of the Comptroller-General (SITRAUD). In relation to the refusal of the Office of the Comptroller-General to comply with the court order to reinstate Mr Julio César Monzón Ramírez, the Government indicates that the complaint concerning the offence of disobedience of the reinstatement order of the abovementioned worker was rejected by the Multi-person First Criminal Peace Court. The Government adds that the mediation process had begun between the SITRAUD and the Office of the Comptroller-General within the ILO Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining.

Union of Workers of the Human Rights Office (SITRAPDH)

1. 525. In a communication dated 15 October 2015, the Government sent its observations regarding the Union of Workers of the Human Rights Office (SITRAPDH). The Government refers to the delay in granting registration of the union, indicating that the length of the time elapsed before the registration is due to the number of appeals lodged in connection with the creation of the SITRAPDH.

C. The Committee’s conclusions

1. 526. The Committee observes that the present case refers, firstly, to 57 cases in which the Ministry of Labour and Social Welfare is alleged to have refused to register trade unions without any justification and, secondly, to various cases of dismissals and anti-union acts within public institutions, most of them occurring further to the establishment of trade union organizations.

Cases in which registration of trade union organizations was refused

1. 527. With regard to the cases in which registration of trade union organizations was refused, the Committee observes that the complainant denounces in general: (i) the arbitrary nature of decisions by the Ministry of Labour and Social Welfare, especially where unions belonging to the MSICG are concerned; (ii) the denial of the right of trade union organizations to affiliate workers on civil contracts within the public administration; (iii) the impossibility of forming branch unions; (iv) the recognition by the labour administration of the employer’s right to oppose the establishment of a union; (v) the communication to the employer of the data of the workers who founded the union; and (vi) the fact that the labour administration decides which workers have the right to join a union and which do not (workers occupying positions of trust, etc.).
2. 528. The Committee also observes that, with regard to the abovementioned general allegations, the Government states that: (i) the procedure for the registration of trade unions is defined by law; (ii) under the Labour Code, the Labour Directorate-General has the obligation to verify that trade unions in the process of being established meet the requirements laid down by law; (iii) as a result of that obligation, the Ministry has to ensure, through direct monitoring, that the union founders are workers who have the right to join trade unions; and (iv) the employer has the same right as any other citizen to bring requests before the authorities.
3. 529. Furthermore, the Committee notes that, with respect to the 57 cases in which registration of trade unions was refused, the complainant has sent detailed information with regard to eight unions and, in addition, has provided two lists of 33 and 16 cases, respectively, in which registration was refused.

Guatemalan National Union of Naturopathic Practitioners (GNGMN)

1. 530. The Committee notes that, according to the Government’s reply: (i) the Labour Directorate-General of the Ministry of Labour and Social Welfare did not request the GNGMN to reconvene its constituent assembly; (ii) neither did the Directorate request the removal from its constitution of the reference to collective bargaining; and (iii) on 29 May 2014, the GNGMN was registered under Order No. 11-2014. This being the case, the Committee will not pursue its examination of this allegation.

Autonomous Union of Teachers of Guatemala (SAMGUA)

1. 531. The Committee notes the complainant’s allegation that the registration of the Autonomous Union of Teachers of Guatemala (SAMGUA) was refused because its constitution envisaged union membership for all workers in the service of the Ministry of Education, regardless of the type of employment contract whereby the employment relationship had been formalized, and that this constituted a violation of Article 2 of Convention No. 87 by the Ministry of Labour and Social Welfare. The Committee further notes the Government’s indication that the scope of affiliation established in the SAMGUA constitution is contrary to Ministerial Decision No. 215-2004 of the Ministry of Public Finance establishing budget classifications for the public sector in Guatemala, which indicates that technical and professional services subject to the payment of fees are provided by contract staff who are not covered by a dependent employment relationship and, consequently, are not eligible for membership of a public-sector union. The Committee notes the Government’s additional indication that SAMGUA failed to rectify four errors of form in its constitution identified by the Labour Directorate-General.
2. 532. The Committee recalls that, by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 254]. The Committee also recalls that it has already underlined the need for the Government of Guatemala to recognize the right to organize of workers who are hired by the State on the basis of civil contracts for professional services [see 363rd Report, Case No. 2768, March 2012, paras 641 and 644]. Accordingly, the Committee again urges the Government to take the necessary steps to recognize the right to trade union membership of workers who provide services for the State on the basis of civil contracts and requests it to ensure that immediate recognition is given to the validity of the provision in the constitution of SAMGUA which envisages union membership for all workers at the Ministry of Education, regardless of the type of contract through which the employment relationship has been formalized. The Committee also requests the complainant to report on the rectification of the errors of form called for by the labour administration and requests the Government to keep it informed without delay on the finalization of the procedure for the registration of SAMGUA.

Teachers’ Federation of Chiquimula (CETRAMACH)

1. 533. The Committee notes the complainant’s allegation that: (i) despite several written applications sent by the organization, which is composed of hundreds of workers, five months elapsed without any notification being sent by the Ministry of Labour and Social Welfare in response to the application for registration of the Teachers’ Federation of Chiquimula (CETRAMACH) submitted in July 2013; (ii) in view of this silence, the MSICG instituted amparo proceedings (for the protection of constitutional rights) against the Director-General of Labour, who claimed in court that the union’s application for registration was being processed and that the Labour Inspectorate-General was verifying that the union members are indeed workers at the Ministry of Education, that they do not occupy positions of trust and that there have been no resignations from the union, whereas the legislation only authorizes the labour administration to verify whether the union’s deed of establishment and its constitution are in line with the law; and (iii) furthermore, in practice, the labour administration asks the employer which employees occupy positions of trust and who, consequently, can exercise the right to join a union.
2. 534. The Committee notes the Government’s statement in its reply that after being instructed by a court amparo ruling to issue a decision on the application for the registration of CETRAMACH, the Labour Directorate-General decided to reject the application on 15 July 2014. The Committee also notes that, according to the Government, the refusal to register was on the following grounds: (i) 14 out of the 20 founders of the union were teachers/directors with tenure and therefore occupied positions of trust that were incompatible with union membership; and (ii) the membership taken out by 278 workers that was communicated to the Labour Directorate-General a few days after the union’s establishment could not be taken into consideration because the workers in question had not been party to the union’s deed of establishment (and because their joining of the union had not been accompanied by a clear and precise expression of their wish to form the union, as required by the Labour Code).
3. 535. Recalling that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., para. 307], the Committee observes with the utmost concern that it took two years and a court order before the labour administration reached a decision on the application for registration of CETRAMACH. The Committee also expresses its concern at the fact that the registration of CETRAMACH was refused on the grounds that the federation did not have the minimum of 20 founding members stipulated by the Labour Code, despite having hundreds of worker members, something that was not queried by the labour administration. Observing that the membership of 278 workers recorded a few days after the establishment of the union was not taken into consideration on formal procedural grounds and recalling that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations and that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Digest, op. cit., para. 279], the Committee considers that in this case the labour administration should provide assistance to the trade union organization in order to find a prompt practical solution to the procedural issues that have been identified and proceed with the registration of the trade union organization without delay.
4. 536. With regard to the Government’s indication that 14 of the 20 founders of the organization were workers occupying positions of trust who were not entitled to join a trade union organization, the Committee recalls that an excessively broad interpretation of the concept of “worker of confidence” [worker occupying a position of trust], which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association [see Digest, op. cit., para. 251]. Moreover, taking into consideration the numerous reported cases of delay in the registration of trade union organizations caused by the time spent by the labour administration on examining the types of employment relationship and the categories of job occupied by union founders, the Committee considers that issues involving complex legal appraisals in certain cases, such as determining whether or not the union’s founders occupy positions of trust, should not delay the registration process. The Committee therefore requests the Government to take the necessary steps to ensure that such issues are dealt with after registration in the event of any objections. In view of the above, and taking account of the substantial membership of CETRAMACH, the Committee urges the Government to proceed immediately with the registration of CETRAMACH and to keep it informed in this regard.

Southern Campesino Federation

1. 537. Regarding the refusal to register the Southern Campesino Federation (CCS), the Committee notes that the following elements emerge from the complainant’s allegations and the Government’s reply: (i) the CCS, after having submitted its application for registration on 4 September 2012, incorporated on two occasions the amendments to its constitution called for by the Worker Protection Department of the Ministry of Labour and Social Welfare; (ii) as a result of the above, on 1 February 2013, said Department issued an opinion in favour of the registration of the CCS and forwarded its file to the Labour Directorate-General; (iii) on 18 July 2013, the Labour Directorate-General requested the CCS Provisional Executive Committee to carry out a number of corrections in order to be able to continue with the registration process; (iv) the CCS Provisional Executive Committee filed an appeal against this decision, but it was declared inadmissible by the Deputy Minister of Labour; and (v) the CCS filed amparo proceedings against the decision by the Deputy Minister of Labour, which were rejected by the Supreme Court of Justice on the grounds that the Ministry order against which the appeal had been brought referred to simple procedural matters that did not impinge upon the trade union’s rights.
2. 538. The Committee observes, however, that the decision by the Labour Directorate-General, requesting the CCS to carry out corrections, was issued ten months after the CCS had submitted its request for registration and five months after another department of the Ministry of Labour and Social Welfare issued an opinion in favour of the registration of the CCS, once it had carried out the corrections requested by that department. In the light of these elements, the Committee again regrets the excessive delay with which the Ministry of Labour and Social Welfare issues decisions regarding applications for registration by organizations and also expresses concern at the complexity of the Ministry’s internal proceedings in this regard. The Committee also observes that, despite the time that has elapsed since the application for registration and the difference in focus between the opinion of the Worker Protection Department and the decision of the Labour Directorate-General, both the administrative and judicial authorities declared inadmissible the appeals filed by the CCS against this decision. In this regard, the Committee recalls that judges should be able to deal with the substance of a case concerning a refusal to register so that they can determine whether the provisions on which the administrative measures in question are based constitute a violation of the rights accorded to occupational organizations by Convention No. 87 [see Digest, op. cit., para. 304]. In these circumstances, the Committee urges the Government to take all necessary measures to expedite considerably its internal registration procedures and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered. The Committee also invites the CCS to resubmit its application for registration and urges the Government to process it without delay. The Committee requests the Government to keep it informed in this regard.

Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG)

1. 539. With regard to the registration of the Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG), the Committee notes the complainant’s allegation that, despite the federation having 500 members, the Labour Directorate-General refused to register it on the basis of section 215(c) of the Labour Code, which stipulates that industry trade unions must comprise more than half the workers of the sector. The Committee observes that the complainant adds that the aforementioned legal provision has given rise to repeated requests for revision from the CEACR and that the action to have that provision declared unconstitutional is still awaiting a substantive decision from the Constitutional Court. The Committee also notes the observations of the Government indicating that CENTRIMAG’s registration request was denied due to lack of compliance with section 215(c) of the Labour Code, which requires industry trade unions to comprise more than half the workers of the sector, whereas the members of the union in formation only had 23 members, according to the Government.
2. 540. In this regard, and observing the significant divergence between the union and the Government as to the number of members, the Committee recalls that the legally required minimum number of members must not be so high as to hinder in practice the establishment of trade union organizations. With regard to section 215(c) of the Labour Code, the Committee also recalls that in the context of the “roadmap” adopted by the Government in October 2013, following 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 pledged to adopt the legislative measures requested by the CEACR with respect to Convention No. 87, including the amendment of section 215(c) of the Labour Code. In view of the above, the Committee urges the Government to take the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions, to communicate the present conclusions to the Constitutional Court, to proceed without delay with the registration of CENTRIMAG, and to keep it informed in this respect.

Western Indigenous and Campesino Federation (CICO)

1. 541. With regard to the registration of the Western Indigenous and Campesino Federation (CICO), the Committee notes the complainant’s allegation that more than seven months after submission (on 7 November 2013) of the application for registration of this branch organization, the Ministry of Labour and Social Welfare rejected the application, stating that registration of the organization was subject to the removal of references to “men and women workers” in its constitution and requiring that the occupation or office of the trade union members be indicated. The Committee also notes the Government’s observations indicating that ten days after the application for the registration, the Ministry of Labour and Social Security requested the trade union in formation to amend its charter and draft statutes and that the decision to close the application for registration was solely due to the union’s refusal to incorporate such changes and, therefore, to the failure to meet the requirements of the labour legislation.
2. 542. Based on the above, the Committee notes on the one hand that the complainant organization alleges that the refusal to register the CICO was because the Ministry of Labour and Social Welfare requested amendments to the union statutes provisions related to the categories of workers covered by the trade union being formed, thus violating its autonomy. The Committee notes on the other hand, that the Government does not specify the content of amendments required by the Ministry, pointing out only that the requested changes were based on the provisions of the labour legislation. Recalling that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Digest, op. cit., para. 333] and observing the complainant’s indication that CICO is a branch organization and not an occupational trade union, the Committee requests the Government to inform it without delay about the content of the modifications of the statutes requested, and to ensure in the meantime that the latter can represent the workers covered by its constitution.
3. Authentic National Union of Workers at the Ministry of Public Health and Social Assistance
4. 543. The Committee notes that the complainant alleges that the Ministry of Labour and Social Welfare notified the Authentic National Union of Workers at the Ministry of Public Health and Social Assistance that it should modify its scope of action, divesting the union of its national status, preventing workers in other workplaces belonging to the same entity from joining the union and abolishing the branches provided for in its constitution. Regretting that the Government has not sent its observations concerning this allegation and recalling that under Article 2 of Convention No. 87, workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and different cities [see Digest, op. cit., para. 335], the Committee requests the Government to send its observations without delay concerning the refusal to register the aforementioned trade union and to ensure in the meantime that the trade union can represent workers of the Ministry of Labour and Social Welfare, even if they are employed in different workplaces.

Union of Workers of the Workers’ Financial Group and other bodies comprising the same economic unit (SITRAGFIT)

1. 544. The Committee notes the complainant’s allegation that: (i) the Ministry of Labour and Social Welfare demanded that the union amend its constitution, eliminating in particular the possibility for the union to have branches and for leaders to be elected to the latter and, further to the union’s refusal to comply, shelved the application for registration of the union; and (ii) at the same time, all the founding members of the union were dismissed immediately without any adequate protection from the justice system, either because the courts delayed in taking any decision on reinstatement or because the reinstatement orders which were issued were not complied with. The Committee notes on the other hand that the Government indicates that: (i) some weeks after the request for the registration of the union, the Ministry of Labour received the resignations of several workers affiliated to SITRAGFIT, including a person registered as a founding member, indicating that their affiliation was improperly obtained; (ii) the refusal of the application to register SITRAGFIT was further based on the violation of section 212 of the Labour Code which prohibits dual union membership and on the fact that the union in formation included six companies that did not have members in each one of them; and (iii) the legal proceedings related to the reinstatements are pending because of appeals and an application of the writ of amparo.
2. 545. With regard to the prohibition of double union membership by section 212 of the Labour Code, the Committee recalls that it has already indicated on several occasions that workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time [see Digest, op. cit., para. 360]. Similarly, in the present case the Committee emphasizes that workers should be able to simultaneously join a company union and a union of groups of undertakings and that section 212 of the Labour Code, of which review has been requested for many years by the Committee of Experts on the Application of Conventions and Recommendations, should not therefore impede the registration of SITRAGFIT. In relation to the Government’s indications that several workers had complained that their affiliation was obtained improperly and that the union did not have members in three of the six companies covered by its statutes, the Committee requests the complainant to send its corresponding observations.
3. 546. Furthermore, underlining the fact that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 771] and further recalling that in the context of the Memorandum of Understanding concluded with the Workers’ group of the ILO Governing Body on 26 March 2013 following the complaint concerning non-observance by the Government of 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 pledged to adopt “policies and practices to ensure the application of labour legislation, including … timely and effective judicial procedures”, the Committee expects that the pending judicial rulings relating to the dismissal of the founding members of SITRAGFIT will be handed down in the very near future, and that all existing and pending reinstatement orders will be complied with immediately. The Committee requests the Government to keep it informed in this respect.
4. 547. With respect to the 33 trade unions listed that were reportedly unsuccessful in applying for registration in 2012 and 2013, the Committee notes the information supplied by the Government in relation to each of the aforementioned cases. The Committee notes that the following organizations were registered and acquired legal personality: (i) Union of Workers and Employees of the Municipality of San Carlos Sija in the Department of Quetzaltenango; (ii) Union of Workers at the Ministry of the Interior; (iii) Union of Workers at RENAP Guatemala; and (iv) Union of Workers at the Department of Conservation and Restoration of Pre-Hispanic Archaeological Sites. In view of the above, the Committee will not pursue its examination of the allegations relating to these organizations.
5. 548. Furthermore, the Committee notes that the application for registration of the Union of Workers of the Directorate-General for Sports and Recreation was cancelled because the executive committee of the organization indicated that it was withdrawing the application. The Committee will therefore not pursue its examination of this allegation.
6. 549. With regard to the applications for registration from the Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos, the Union of Workers of the Municipality of Palín in the Department of Escuintla and the Union of Workers at the Education Directorate of the Department of Alta Verapaz, the Committee notes that registration was refused on the grounds of non-compliance with section 218(a) of the Labour Code, which stipulates a maximum period of 20 working days between the union’s constituent assembly and the submission of the registration application documents. The Committee requests the complainant organization to send any observations it may wish to make on this matter.
7. 550. The Committee also notes that the registration of the Union of Workers of the Municipality of Pachulum was refused after the Labour Directorate-General established that four of the 20 workers belonging to the union were members of the police force. Recalling that the Committee recognizes that States have the authority to exclude members of the police from the scope of trade union rights and that the requirement of a minimum of 20 members for establishing a trade union is not incompatible with the principles of freedom of association, the Committee requests the complainant to send any additional information that it considers relevant concerning the refusal to register the aforementioned union.
8. 551. With respect to the Union of Workers and Employees at the Ministry of Education and Private Schools, the Committee notes the Government’s indication that registration was refused because, under the terms of section 3 of the Act concerning unionization and strike regulation for state workers and section 215 of the Labour Code, it is impossible for the same union to group together public servants and private-sector workers. The Committee recalls once again that the free exercise of the right to establish and join unions implies the free determination of their structure and composition, and emphasizes the fact that in this case it should be possible for a trade union organization in the education sector to group together workers from both public and private schools, on the understanding that each group should conduct separate negotiations, being subject to a separate budget and separate regulations. In view of the above, the Committee requests the Government to proceed with the registration of the abovementioned organization.
9. 552. As regards the application for registration of the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa, the Committee notes the Government’s indication that educational staff lists are being reviewed to ensure that, in accordance with section 212(2) of the Labour Code, members of the union do not belong to any other organization. Recalling that workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time [see Digest, op. cit., para. 360], the Committee highlights the fact that the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa submitted its application for registration in 2013. Recalling that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., para. 307], the Committee urges the Government to proceed immediately with the registration of the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa, while retaining the possibility that any complaints regarding dual membership at the same workplace may be examined subsequently. The Committee requests the Government to keep it informed in this respect.
10. 553. The Committee also notes the Government’s indication that, in accordance with section 5 of the Administrative Litigation Act, the registration requests from 18 trade unions were shelved because more than six months had elapsed since the last notification from the administration (Union of Workers of the Municipality of Santa Lucía Milpas Altas; Union of “Teachers for Change”; Union of Workers at Avandia SA; Union of Workers of the Municipality of Villa de Tejutla in the Department of San Marcos; Union of Workers of the Municipality and Electricity Company of Guastatoya El Progreso; Teachers’ Union of Jalapa; Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Izabal; Union of Workers of the Municipality of Santa Cruz El Chol in the Department of Baja Verapaz; Union of Workers of the Municipality of San Miguel Tucurú in the Department of Alta Verapaz; Union of Workers of the Municipality of Usumatlán; Union of Collection Agents at Cable Star SA; Union of Workers at SEAK HWA SA; General Union of Municipal Employees of Coatepeque). The Committee requests the Government to provide information as soon as possible, with respect to the 13 aforementioned unions, on the reason for their non-registration and also on the content and dates of the notifications sent to them by the labour administration.
11. 554. Moreover, the Committee notes the Government’s indication that, in five cases, the registration applications from the trade union organizations have been the subject of legal proceedings which are still in progress (Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Sport; Union of Workers at the Port of Santo Tomás de Castilla; Union of Workers at Ternium Internacional Guatemala SA; Union of Workers of the Guatemalan Heart Disease Association; “Pro Dignity” Workers’ Union at the Tax Administration Supervisory Authority (SBFBOSAT)). The Committee requests the Government to provide information on the reasons for the aforementioned legal proceedings and on the outcome thereof.
12. 555. With respect to the application for registration of the “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority and the Union of Workers of the Municipality of San José El Rodeo (Department of San Marcos), the Committee notes the Government’s brief statement that the two unions were not registered because their membership included workers occupying positions of trust. In this regard, the Committee recalls that an excessively broad interpretation of the concept of “worker of confidence” [worker occupying a position of trust], which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association [see Digest, op. cit., para. 251]. In addition, the Committee reiterates the fact that determining whether or not the union’s founders occupy positions of trust, which may involve a complex legal appraisal, should not delay the registration procedure, since that question could be considered after registration in the event of any objections, especially where there are allegations of interference by the employer in the process of establishing the trade union. The Committee therefore requests the Government to review without delay the registration applications from the two unions in the light of these principles and to keep it informed of the outcome.
13. 556. As regards the list of 16 trade unions whose applications for registration submitted in 2010 were, according to the complainant, rejected without justification, the Committee observes that 13 of these 16 cases have already been examined by the Committee in the context of Case No. 2840, the Committee having asked the Government to take steps to ensure their prompt registration [see 365th Report, paras 1057 and 1063]. The Committee notes with concern that it has not received any information from the Government on this matter. The Committee therefore urges the Government to provide information without delay, in the context of Case No. 2840, on the registration of the aforementioned trade union organizations. With regard to the applications for registration of the Union of the Education Ministry of the Department of Alta Verapaz, the Union of the Ixcan Quiché Health Sector and the Guatemalan Union of Labour Supporters and Defenders of Human Rights, the Committee requests the Government to provide information as soon as possible on the registration of the aforementioned organizations or, if applicable, to indicate the reasons that prevented registration.
14. 557. In addition to the conclusions adopted by the Committee in relation to each of the specific cases of application for registration contained in the complainant’s allegations, the Committee expresses serious concern in general at the greatly reduced number of cases in which the Government reports that the applications for trade union registration have been successful (5 out of 57 cases), at the lengthy periods of time that often elapse before any decision is issued by the labour administration, and at the frequency of cases in which the labour administration calls for substantive amendments to a union constitution, thereby affecting the autonomy that should be enjoyed by trade union organizations by virtue of the principles of freedom of association. The Committee recalls that for many years this issue has been the subject of recurrent pronouncements by the ILO supervisory bodies as a whole and by this Committee in particular [for example: 299th Report (Case No. 1595, June 1995, paragraph 410); 302nd Report (Case No. 1823, March 1996, paragraph 446); 363rd Report (Case No. 2768, March 2012, paragraph 638), and Case No. 2840 referred to previously] and that, at its 324th meeting (June 2015), as part of the complaint concerning non-observance by Guatemala of Convention No. 87, made under article 26 of the ILO Constitution, the Governing Body of the ILO included the unimpeded registration of trade unions by the Ministry of Labour and Social Welfare among the priority issues that required further urgent action by the Government. The Committee therefore again urges the Government to eliminate the various legal obstacles to the free establishment of trade union organizations referred to in the preceding paragraphs and, in consultation with the country’s trade union federations and employers’ organizations, to review the handling of registration applications, with a view to adopting an approach that enables the rapid resolution, in conjunction with the founders of trade union organizations, of issues of substance or form that arise and facilitating as far as possible the registration of trade union organizations. Recalling that technical assistance is available from the ILO, the Committee requests the Government to keep it informed without delay on the initiatives taken and the results achieved in this respect.

Allegations of anti-union discrimination and persecution

Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ)

1. 558. The Committee observes that the complainant’s allegations concerning SITRASEPAZ refer to: (i) the anti-union dismissal of 11 workers including the union’s general secretary; (ii) the application for judicial dissolution of the union on the grounds of being largely composed of contract staff who did not have the official status of workers; (iii) the denial of that union’s right to engage in collective bargaining; and (iv) the criminalization of union activity through various criminal proceedings instituted against the union’s general secretary, Mr Luis Antonio Mérida Ochoa.
2. 559. With regard to the dismissal of Mr Luis Antonio Mérida Ochoa, the Committee notes the Government’s indication that the termination of his temporary services contract did not constitute an act of anti-union reprisal, and that the Supreme Court of Justice refused to reinstate him on the grounds that his position as director disqualified him from membership of SITRASEPAZ and that, consequently, he was not entitled to trade union immunity. In this regard, the Committee recalls that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [see Digest, op. cit., para. 247]. The Committee observes, however, that the ruling of the Supreme Court of Justice refers only to whether or not trade union immunity exists for Mr Luis Antonio Mérida Ochoa but not to the grounds for the worker’s dismissal. The Committee therefore requests the Government to keep it informed of any court decisions relating to the validity of the termination of the worker’s contract.
3. 560. With regard to the other ten dismissals concerning members of SITRASEPAZ, the Committee notes the Government’s indication that this stems from the closure of the peace archives directorate. With a view to conducting an exhaustive examination of the allegations of anti-union discrimination in this case, the Committee requests the Government to send additional information on the total number of dismissals that have occurred because of the aforementioned closure. The Committee also requests the complainant to provide information on any court proceedings that exist in relation to those dismissals. With regard to the status of contract staff (budget item 29) held by the majority of workers constituting the membership of SITRASEPAZ, the Committee again recalls that all workers must be able to enjoy the right to freedom of association regardless of the type of contract by which the employment relationship has been formalized. The Committee therefore requests the Government to ensure the full application of this principle within the Peace Secretariat. As regards the collective agreement signed by SITRASEPAZ, the Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service [see Digest, op. cit., para. 886]. The Committee requests the Government to disseminate the abovementioned principles to public institutions and to keep it informed as to their application in the Peace Secretariat, that account will be taken of the aforementioned principle in the judicial settlement of the dispute, and requests the Government to keep it informed in this respect. Lastly, with regard to the criminal proceedings instituted against the union’s general secretary, Mr Luis Antonio Mérida Ochoa, the Committee requests the Government to provide further details of the charges brought against this worker and to keep it informed of the outcome of the aforementioned criminal proceedings.
4. “United for Development” Workers’ Union at the Office of the Comptroller-General (SITRAUD)
5. 561. The Committee observes that the complainant’s allegations concerning SITRAUD refer to the anti-union dismissal of various members of the union by the Office of the Comptroller-General in retaliation for the request for negotiation of a collective accord relating to conditions of work. The Committee notes the complainant’s allegation that the aforementioned institution has repeatedly refused to comply with the court orders for the reinstatement of SITRAUD members, Mr Julio César Monzón Ramírez, Mr Juan Domingo Pinula Santay and Mr José Ramos Méndez, without the necessary steps being taken to penalize the aforementioned contempt of court and put an end to this situation of violation of freedom of association.
6. 562. The Committee notes the Government’s observations stating that the complaint concerning the offence of disobedience of the order to reinstate Mr Julio César Monzón Ramírez was rejected by the Multi-person First Criminal Peace Court. However, the Committee observes that the Government’s response does not specify the grounds for rejecting the complaint, does not indicate whether or not Mr Julio César Monzón Ramírez was in fact reinstated and does not include any information regarding why Mr Juan Domingo Pinula Santay and Mr José Ramos Méndez were not reinstated. The Committee expresses concern regarding the alleged repeated refusals by a public institution to comply with court orders for the reinstatement of workers who had been victims of anti-union dismissal. While noting the Government’s indication that a mediation process between the SITRAUD and the Office of the Comptroller-General had been initiated within the ILO Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining, the Committee urges the Government to ensure, should the existence of the aforementioned court orders be substantiated, that the administration concerned immediately reinstates the dismissed workers in their posts and to keep it informed in this respect.

Union of Workers of the Guatemalan Heart Disease Association (SIDETRALICO)

1. 563. With regard to the anti-union acts reportedly affecting members of SIDETRALICO, the Committee observes that the complainant’s allegations refer to: (i) the dismissal of almost all the founding members of the union on the same day that the labour administration was notified of the establishment of the union, which suggests collusion between the labour administration and the employer; (ii) failure to comply with orders for the reinstatement of the workers issued by the court of first instance; and (iii) unequal treatment by the appeal court responsible for reviewing the first-instance rulings, allowing all the evidence submitted by the employer but rejecting that submitted by the workers.
2. 564. The Committee notes with regret that the Government has not sent its observations concerning the abovementioned allegations despite the time that has elapsed. The Committee recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 820]. The Committee urges the Government to send its observations concerning the abovementioned allegations as a matter of urgency and expects that the various court actions brought in relation to the events described will result in prompt decisions which respect the principles of freedom of association and are being complied with. The Committee requests the Government to keep it informed without delay in this regard.

Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH)

1. 565. The Committee observes that the complainant’s allegations concerning the Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH) refer to the anti-union dismissal of seven workers further to their joining the aforementioned union and to obstruction by the courts, which reportedly refuse to issue a ruling on the action for reinstatement submitted in June 2013 and also on the amparo action for lack of legal protection lodged due to the lack of any decision by the ordinary courts.
2. 566. While noting the observation of the Government about delays in the registration of the SITRAPDH, the Committee notes with regret that, despite the time that has elapsed, the Government has not sent its observations concerning the alleged anti-union dismissals and the delay in the administration of justice. The Committee recalls 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 by the enterprise, 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 also recalls once again that, in the context of the Memorandum of Understanding concluded with the Workers’ group of the ILO Governing Body on 26 March 2013 further to the complaint concerning non-observance by the Government of 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 pledged to adopt “policies and practices to ensure the application of labour legislation, including … timely and effective judicial procedures”. In view of the above, the Committee urges the Government to send its observations concerning the aforementioned allegations as a matter of urgency. The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which respect the principles of freedom of association and are being complied with. The Committee requests the Government to keep it informed without delay in this regard.

Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG)

1. 567. The Committee observes that the complainant’s allegations concerning the Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and the Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG) refer to: (i) the supposed anti-union dismissal of two officials from the aforementioned unions and the request for judicial authorization of the dismissal of the general secretary of STAYSEG in response to the promotion of a collective bargaining process by these unions; and (ii) the inadequate response and delay on the part of the judicial bodies examining these cases. Noting once again with regret that the Government has not sent its observations concerning the aforementioned allegations despite the time that has elapsed, the Committee recalls, as it did with regard to the previous allegations of anti-union discrimination, that no person should be prejudiced in employment by reason of legitimate trade union activities and that cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions. The Committee urges the Government to send its observations concerning the abovementioned allegations as a matter of urgency and to ensure the free exercise of the right of collective bargaining within the Ministry of Education. The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which respect the principles of freedom of association and are being complied with.

The Committee’s recommendations

1. 568. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again urges the Government to take the necessary steps to ensure recognition of the right to trade union membership of workers who provide services for the State on the basis of civil contracts and requests it to immediately recognize the validity of the provision in the constitution of the Autonomous Union of Teachers of Guatemala (SAMGUA) which envisages union membership for all workers at the Ministry of Education, regardless of the type of contract through which the employment relationship has been formalized. The Committee also requests the complainant to report on the rectification of the errors of form called for by the labour administration and requests the Government to keep it informed without delay on the finalization of the procedure for the registration of SAMGUA.
   • (b) The Committee urges the Government to proceed immediately with the registration of CETRAMACH. Furthermore, the Committee requests the Government to take the necessary steps to ensure that issues involving complex legal appraisals in certain cases, such as determining whether or not the union’s founders occupy positions of trust, do not delay the registration process, since these could be dealt with after registration in the event of any objections. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee urges the Government to take all necessary measures to expedite considerably its internal registration procedures and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered. The Committee also invites the CCS to resubmit its application for registration and urges the Government to process it without delay. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee urges the Government to take the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions. The Committee further requests the Government to proceed without delay with the registration of the Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG), and to keep it informed in this respect.
   • (e) The Committee requests the Government to provide information on the types of modifications required to the statutes of the CICO and to ensure in the meantime that the latter is able to represent the workers envisaged in its constitution.
   • (f) The Committee requests the Government to send its observations without delay concerning the refusal to register the Authentic National Union of Workers at the Ministry of Public Health and Social Assistance and to ensure in the meantime that the latter is able to represent workers at the aforementioned ministry even if they are employed in different workplaces.
   • (g) In relation to SITRAGFIT, the Committee requests the complainant to send its observations in relation to the Government’s indications that several workers had complained that their affiliation was obtained improperly and that the union did not have members in three of the six companies covered by its statutes. Furthermore, the Committee expects that the pending judicial rulings relating to the dismissal of the founding members of SITRAGFIT will be handed down in the very near future, and that all existing and pending reinstatement orders will be complied with immediately. The Committee requests the Government to keep it informed in this respect.
   • (h) The Committee requests the Government to proceed with the registration of the Union of Workers and Employees at the Ministry of Education and Private Schools.
   • (i) The Committee urges the Government to proceed immediately with the registration of the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa, while retaining the possibility that any complaints regarding dual membership at the same workplace may be examined subsequently. The Committee requests the Government to keep it informed in this respect.
   • (j) With regard to the Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos, the Union of Workers of the Municipality of Palín in the Department of Escuintla and the Union of Workers at the Education Directorate of the Department of Alta Verapaz, on the one hand, and the Union of Workers of the Municipality of Pachulum, on the other, the Committee requests the complainant organization to send any observations it may wish to make regarding the Government’s statements concerning the reasons for refusing to register the aforementioned unions.
   • (k) With regard to the shelving of registration applications from 13 trade unions because more than six months had elapsed since the last notification from the labour administration, the Committee requests the Government to provide information without delay on the reason for non-registration of the aforementioned unions and also on the content and dates of the notifications sent to them by the labour administration.
   • (l) With regard to the applications for registration from five trade union organizations in relation to which legal proceedings are still in progress, the Committee requests the Government to provide information without delay on the reasons for the aforementioned legal proceedings and on the outcome thereof.
   • (m) With regard to the failure to register the “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority and the Union of Workers of the Municipality of San José El Rodeo (Department of San Marcos), the Committee requests the Government to review its decisions in the light of the principles underlined by the Committee relating to workers occupying positions of trust and to keep it informed in this respect.
   • (n) With regard to the list of 16 trade unions whose applications for registration submitted in 2010 were, according to the complainant, refused without justification, the Committee requests the Government to provide information without delay on the registration of the Union of the Education Ministry of the Department of Alta Verapaz, the Union of the Ixcan Quiché Health Sector and the Guatemalan Union of Labour Supporters and Defenders of Human Rights or, if applicable, to indicate the reasons that prevented registration. The Committee also urges the Government to provide, in the context of Case No. 2840, information without delay on the registration of the other 13 trade union organizations.
   • (o) The Committee expresses its concern at the large number of cases in which applications for trade union registration have been unsuccessful, at the lengthy periods of time that often elapsed before any decision is issued by the labour administration, and at the frequency of cases in which the labour administration calls for substantive amendments to a union constitution, thereby affecting the autonomy that should be enjoyed by trade union organizations by virtue of the principles of freedom of association. The Committee again urges the Government to eliminate, in consultation with the country’s trade union federations and employers’ organizations, the various legal obstacles to the free establishment of trade union organizations referred to in the preceding paragraphs and to review the handling of registration applications, with a view to adopting an approach that enables the rapid resolution, in conjunction with the founders of trade union organizations, of issues of substance or form that arise and facilitating as far as possible the registration of trade union organizations. Recalling that technical assistance is available from the ILO, the Committee requests the Government to keep it informed without delay on the initiatives taken and the results achieved in this respect.
   • (p) With regard to the allegations concerning the Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ), the Committee requests the Government to: (i) keep it informed of any court decisions relating to the validity of the termination of the contract of the union’s general secretary, Mr Luis Antonio Mérida Ochoa; (ii) provide additional information on the total number of dismissals that have occurred because of the closure of the peace archives and requests the complainant to provide information on any court proceedings that exist in relation to those dismissals; (iii) ensure within the Peace Secretariat that all workers enjoy the right to freedom of association, regardless of their contractual relationship and that all workers not engaged in the administration of the State enjoy the right to collective bargaining, and to keep it informed in this respect; (iv) disseminate to public institutions the abovementioned principles; and (v) provide further details of the charges brought against Mr Luis Antonio Mérida Ochoa and to keep it informed of the outcome of the criminal proceedings instituted against him.
   • (q) The Committee requests the Government to provide its observations without delay concerning the alleged anti-union dismissals of members of the Union of Workers of the Guatemalan Heart Disease Association (SIDETRALICO) and of the Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH). The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which are implemented and respect the principles of freedom of association and are being complied with. The Committee requests the Government to keep it informed without delay in this regard.
   • (r) The Committee requests the Government to provide its observations without delay concerning the allegations of anti-union discrimination against the Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and the Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG) and to ensure the free exercise of the right to collective bargaining within the Ministry of Education. The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which respect the principles of freedom of association and are being complied with.
   • (s) The Committee urges the Government to ensure, should the existence of the court orders referred to in the conclusions be substantiated, that the administration concerned immediately reinstates the dismissed workers in their posts, and to keep it informed in this respect.