Report in which the committee requests to be kept informed of development - Report No 380, October 2016

Case No 3035 (Guatemala) - Complaint date: 14-MAY-13 - Closed

Allegations: The complainant organization condemns the refusal by the authorities of the Ministry of Labour and Social Welfare to register a firefighters’ trade union, and the fact that the establishment of the union led to dismissals, transfers and pressure on members to resign their membership

1. 528. The Committee examined this case at its October 2014 meeting and on that occasion presented an interim report to the Governing Body [see 373rd Report, approved by the Governing Body at its 320th Session (October 2014), paras 369 to 381].
2. 529. The Government sent its observations in communications dated 19 January 2015, 3 August and 30 September 2016.
3. 530. 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. Previous examination of the case

1. 531. At its October 2014 meeting, the Committee made the following recommendations [see 373rd Report, para. 381]:
   • (a) The Committee regrets to note that, despite several requests and an urgent appeal, the Government has failed to provide any information on the allegations and requests it to be more cooperative in the future.
   • (b) The Committee urges the Government to examine without delay the appeal for annulment lodged by the candidate trade union with regard to the refusal of its registration and to ensure that its decision fully complies with the principles of freedom of association with regard to the establishment and registration of trade unions mentioned in the conclusions. The Committee requests the Government to keep it informed without delay in this regard.
   • (c) The Committee urges the Government to conduct immediately an inquiry into the alleged pressure on SGTBCVGB members to resign their membership and, where appropriate, that the outcome of the inquiry be taken into account in the decision by the labour authorities regarding the registration of that organization. The Committee requests the Government to keep it informed without delay in this regard.
   • (d) The Committee urges the Government to institute immediately an inquiry into the dismissals and transfers of founding union members and, if they are found to be of an anti-union nature, to proceed without delay to the reinstatement of the corresponding workers in their positions. The Committee requests the Government to keep it informed without delay in this regard.

B. The Government’s reply

1. 532. With regard to the alleged refusal to register the Union of Workers of the Voluntary Fire Brigade of Guatemala (SGTBCVBG), the Government states in a communication dated 3 August 2016 that: (i) following the suggestion of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining (hereinafter the Committee for the Settlement of Disputes), union members made a fresh application for registration to the Ministry of Labour and Social Welfare; (ii) in a decision taken on 9 December 2015, the organization was registered under the new name of the “Firefighters Union of Guatemala (SGTBG)”; and (iii) the trade union changed its name purely for registration purposes.
2. 533. Concerning the alleged pressure on SGTBCVBG members to leave the trade union and the alleged dismissals and transfers of the founding members of the union, in a communication dated January 2015, the Government first refers to the comments of the president of the Voluntary Fire Brigade of Guatemala (hereinafter the fire brigade), according to which: (i) no pressure was put on SGTBCVBG members to leave the trade union, but fire brigade management did institute criminal proceedings in connection with the irregularities surrounding the establishment of the trade union, especially the fact that documents and signatures were falsified to make it look as though persons who had not joined the union were founding members; (ii) fire brigade management has not sent emissaries to different firefighting departments, either to encourage them to leave the trade union or to sign a petition against the establishment of the trade union; (iii) the departments that were against the establishment of the trade union had declared their disagreement autonomously; (iv) Ms Teresa Rivas was not subjected to pressure or intimidation – she was removed from the fire brigade for failure to turn up for shifts; (v) on 17 September 2012, Ms Lesbia Corina Queme Roma, Mr Adolfo Martín Enríquez Suchite, Mr Jonathan Raúl Girón Kunse, Mr Luis Alberto Pérez Soberanis and Mr Raúl Heriberto Gonzales were dismissed for restructuring reasons, in line with the Fundamental Act on the Voluntary Fire Brigade of Guatemala; (vi) at the time of their dismissal, the workers in question did not enjoy trade union immunity because, contrary to the statements made by the complainant organization, notice of the establishment of the trade union was only given to the Ministry of Labour and Social Welfare on 15 March 2013 and not on 5 September 2012; (vii) this is why fire brigade management did not reinstate the workers after the labour inspectorate’s visit; and (viii) the transfers of Mr René Galicia, Mr Félix Montenegro and Mr Fernando Esquivel are due to the institution constantly rotating staff to meet needs as they arise in the different fire departments.
3. 534. Second, the Government refers to information provided by the Special Investigation Unit for Crimes against Trade Unionists (hereinafter the Special Investigation Unit), which states that: (i) Mr Luis Alberto Pérez Soberanis, Mr Raúl Heriberto Gonzales, Ms Lesbia Corina Queme Roma, Mr René Galicia, Mr Félix Montenegro, Mr Fernando Esquivel and Mr Adolfo Martín Enríquez Suchite filed criminal charges in connection with the dismissals and alleged pressure to resign membership of the trade union referred to in this complaint; (ii) the Special Investigation Unit obtained witness statements from the complainants; (iii) an investigation was carried out by the unit dealing with attacks against human rights activists of the National Civil Police’s Specialized Criminal Investigation Division; (iv) the alleged perpetrators have been identified; (v) the information collected is being analysed to determine whether the fire brigade authorities interfered in the attempt to establish a trade union; (vi) one of the persons accused drew the Public Prosecutor’s attention to the existence of criminal proceedings against the founding members of the trade union for falsifying documents and signatures to make it look as though persons who had not joined the union were founding members; (vii) on 23 July 2016, the Fourth Court of First Instance in Criminal Matters, Drug Trafficking and Crimes against the Environment declared that the criminal proceedings initiated by several founding members of the trade union and the proceedings instituted by the fire brigade against the same persons for document falsification were related actions.
4. 535. In its communication of 30 September 2016, the Government provides information on the labour inspectorate’s and labour courts’ examination of the dismissal of five founding members of the trade union. With regard to the labour inspectorate intervention, the Government reports that: (i) having observed the anti-union nature of the dismissals on 28 September 2012, the labour inspector initiated an action against the Voluntary Fire Brigade of Guatemala on 13 January 2013 for violating the labour legislation; (ii) as the labour inspection’s power to levy sanctions is not recognized under Guatemalan law, the case was transferred to the labour court on 24 April 2016; and (iii) in a ruling dated 8 May 2013, the Second Labour and Social Welfare Court accepted the statute of limitations invoked by the fire brigade, given that the action had not been filed within the time limit. With regard to the court proceedings concerning the dismissal of the five founding members, the Government states that: (i) on 2 October 2012, the First Labour Court for Claims Admission ordered the immediate reinstatement of Mr Raúl Heriberto González Archila, which was upheld by the Court of Appeal on 12 November 2014; (ii) Mr González Archila has been reinstated, which is why the case was closed; (iii) after several procedural steps, the court made a final ruling on the reinstatement of Mr Jonathan Raúl Girón Kunse and, on 24 May 2016, the court confirmed that the reinstatement had been put into effect; (iv) the courts also ordered the reinstatement of Ms Lesbia Corina Queme Roma, but the auxiliary services centre of the courts was unable to execute the reinstatement because the worker was absent; and (v) information on the reinstatement of Mr Luis Alberto Pérez Soberanis and Mr Adolfo Martín Enríquez Suchite has yet to be provided by the labour courts.
5. 536. The Government states that: (i) in its regular contacts with representatives of the firefighters’ union, it appears that they consider that their organization is still being subjected to acts of anti-union repression; (ii) it is awaiting the decision of the union’s general assembly on whether or not to submit the case for mediation to the Committee for the Settlement of Disputes; and (iii) the Committee will be provided with information on progress achieved within the Committee for the Settlement of Disputes.

The Committee’s conclusions

1. 537. The Committee recalls that, in the complaint presented in 2012, the complainant condemns the refusal by the authorities of the Ministry of Labour and Social Welfare to register a firefighters’ trade union, and the fact that the establishment of the union led to dismissals, transfers and pressure on members to resign their membership.
2. 538. Regarding the allegation of failure to register the trade union, the Committee notes with satisfaction that the Government reports that, at the suggestion of the Committee for the Settlement of Disputes, union members made a fresh application for registration to the Ministry of Labour and Social Welfare, which resulted in the trade union being registered through a decision of 9 December 2015, under the name of the Firefighters Union of Guatemala (SGTBG).
3. 539. With respect to the allegations of anti-union dismissals (Ms Lesbia Corina Queme Roma, Mr Adolfo Martín Enríquez Suchite, Mr Jonathan Raúl Girón Kunse, Mr Luis Alberto Pérez Soberanis and Mr Raúl Heriberto Gonzales) and transfers, and pressure on members to leave the trade union, the Committee notes that it appears from the Government’s observations that: (i) the founding members of SGTBCVBG initiated criminal proceedings against the fire brigade for alleged pressure on trade union members to resign their membership, while the fire brigade initiated its own proceedings against the founding members for alleged falsification of documents during the establishment of the union; (ii) on 23 July 2016, the court declared that both legal proceedings were related actions, and the conclusions of the corresponding investigations are still awaited; (iii) the labour inspectorate, having observed the anti-union nature of the dismissal of five founding members, initiated a legal action against the Voluntary Fire Brigade of Guatemala; (iv) the labour courts rejected the complaint because it had not been filed within the time limit; (v) as a result of the legal challenge to the dismissals, the courts ordered the reinstatement of Mr González Archila and Mr Girón Kunse, and these workers were reinstated in their positions; (vi) the courts also ordered the reinstatement of Ms Queme Roma, but this could not be carried out due to the worker’s absence on the day set for reinstatement; (vii) information from the judiciary is still awaited with regard to the dismissal of Mr Luis Alberto Pérez Soberanis and Mr Adolfo Martín Enríquez Suchite.
4. 540. In light of the foregoing and recalling that justice delayed is justice denied [see Digest of decisions and principles of the Committee on Freedom of Association, fifth (revised) edition, 2006, para. 105], the Committee firmly expects that the criminal charges filed in connection with this case will be concluded without further delay. The Committee requests the Government to keep it informed in this regard. In relation to the dismissal of Ms Queme Roma, who was not reinstated due to her absence on the day of the execution of the reinstatement order, the Committee, recalling that, if the judicial authority determines that reinstatement of workers dismissed in violation of freedom of association is not possible, measures should be taken so that they are fully compensated [see Digest, op. cit., para. 843], requests the Government to provide further information on the situation of the aforementioned worker. The Committee also requests the Government to inform it without delay of the outcome of the legal challenge to the dismissal of Mr Luis Alberto Pérez Soberanis and Mr Adolfo Martín Enríquez Suchite.
5. 541. The Committee notes the Government’s statements to the effect that the SGTBG is reportedly still being subjected to acts of anti-union repression and is considering referral to the Committee for the Settlement of Disputes. In this regard, the Committee notes that the Government does not specify whether this recourse to mediation would focus on acts of anti-union repression subsequent to this complaint, or whether it also covers the allegations made in the complaint. The Committee requests the Government and the complainant organization to inform it of any possible developments before the Committee for the Settlement of Disputes.

The Committee’s recommendations

1. 542. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee firmly expects that the criminal charges filed in connection with this case will be concluded without delay. The Committee requests the Government to inform it in this regard.
   • The Committee requests the Government to provide further information on the situation of Ms Queme Roma and to inform it without delay of the outcome of the legal challenge to the dismissal of Mr Luis Alberto Pérez Soberanis and Mr Adolfo Martín Enríquez Suchite.
   • (c) With regard to possible further acts of anti-union repression in the fire brigade, the Committee requests the Government and the complainant organization to inform it of any possible developments before the Committee for the Settlement of Disputes.