Definitive Report - Report No 384, March 2018

Case No 3094 (Guatemala) - Complaint date: 14-JUL-14 - Closed

Allegations: The complainant organizations allege that an autonomous public institution and the Ministry of Labour and Social Security refuse to recognize the validity of a collective agreement signed by that institution, thereby refusing to acknowledge the right to collective bargaining of the workers concerned.

1. 330. The Committee examined this case at its March 2016 meeting, when it presented an interim report to the Governing Body [see 377th Report, approved by the Governing Body at its 326th Session (March 2016), paras 329–347].
2. 331. The Government sent new observations in communications dated 24 January, 19 April 2017 as well as two communications of February 2018.
3. 332. 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. 333. At its March 2016 meeting, the Committee made the following recommendations [see 377th Report, para. 347]:
   • (a) The Committee requests the Government to send, without delay, its observations in relation to the additional information submitted by the complainant organizations and to keep it informed of the outcome of the mediation process before the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining in relation to INFOM’s seventh collective agreement on working conditions. In the event that the mediation process does not succeed in reaching an agreement, the Committee stresses that the dispute regarding the validity of the collective agreement should be ruled upon by a judicial body and not by the Ministry of Labour and Social Security.
   • (b) Recalling that it may avail itself of the technical assistance of the International Labour Office, the Committee requests the Government to take, in consultation with the trade unions concerned, the necessary measures to ensure that collective bargaining procedures in the public sector follow clear guidelines which meet both the requirements of financial sustainability and the principle of bargaining in good faith. The Committee requests the Government to keep it informed in that regard.
   • (c) The Committee requests the Government to take the necessary measures to ensure that the complaint brought before the Public Prosecutor’s Office by SITRAINFOM gives rise to all the necessary inquiries as soon as possible and to keep it informed of their outcomes.

B. The Government’s reply

1. 334. In its communication of 24 January 2017, the Government provides information from the Public Prosecutor’s Office concerning the complaint submitted on 29 August 2014 by SITRAINFOM against the authorities of the Institute of Municipal Development (hereinafter the Institute) regarding alleged harassment, coercion, threats and trade union repression. The Public Prosecutor’s Office indicates that: (i) the Ministry of Labour and Social Security was asked to provide information on the current status of the collective agreement on working conditions negotiated between the Institute and SITRAINFOM; (ii) on 29 October 2014, an account was received from Mr Marvin Antonio Castañaza Mateo of the allegations made in the complaint; and (iii) security measures were granted for the following SITRAINFOM officials: Marvin Antonio Castañaza Mateo, Miguel Ángel Oxlaj Cume, Rony Estuardo López, Santiago Yupe Peren, Julio César Castañeda, Daniel Gómez Palacios and Carlos Chávez Girón.
2. 335. In its communications dated 24 January and 19 April 2017, the Government provides information from the independent mediator 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”) concerning the mediation process under way between the Institute and SITRAINFOM on the process of negotiating the seventh collective agreement of that institution. The mediator states specifically that: (i) the mediation process before the Committee for the Settlement of Disputes began in 2015, making considerable progress towards the adoption of the collective agreement; (ii) the change of the Institute’s executive committee, following the change of government in January 2016, caused a delay in the approval process for the agreement; (iii) before resuming mediation, the new executive committee established a roadmap based on the various opinions issued by the competent bodies relating to the content of the collective agreement and taking into account the Government Agreement for Containing Costs; (iv) the mediation process resumed on 14 December 2016, with SITRAINFOM proposing not to negotiate a new collective agreement, but instead to define for 2017 the entry into force of the previously negotiated agreement, paying the extraordinary one-off bonus for 2015 contained in that agreement, but cancelling, as a goodwill gesture, the payment corresponding to 2016; (v) the director of the Institute made a commitment to submit this proposal to the executive committee of the Institute and agreed to a further session of mediation on 3 February 2017; (vi) at the session on 3 February 2017, the director of the Institute said that the executive committee had carried out a financial analysis, which had demonstrated that the payment of the extraordinary one-off bonus contained in the collective agreement would risk destabilizing the institution; (vii) the director of the Institute proposed establishing a bipartite committee to analyse the respective financial documents and submit within 20 days proposals to facilitate the resumption of collective bargaining; and (viii) the Committee for the Settlement of Disputes has overseen the establishment of that committee and has requested the parties to proceed rapidly with the process in order to reach agreements and continue the mediation.
3. 336. In its first communication of February 2018, the Government sends new information provided by the President of the Institute. It states that, through Resolution 314-2017, the Institute’s executive committee decided to approve the signing of the VII collective agreement on working conditions. It is specifically indicated in the said Resolution that: (i) based on the financial reports and calculations made, the sources of financing of the VII collective agreement, which correspond to the Institute’s own funds, have been identified; (ii) the legal counsel of the Institute ruled that the said agreement complies with the legal and financial requirements established in article 94 of Decree 50-2016 of the Congress of the Republic (Law of the General Budget of Income and Expenditures of the State for the Fiscal Year of 2017); (iii) management has been instructed to delegate to the negotiating commission of the collective agreement the necessary actions so that the Second Court of Labour and Social Security finalizes the collective dispute that has been referred to it and approves the conciliation agreement, now called the VII collective agreement on working conditions; and (iv) once the process before the Labour and Social Security Court is finalized, the Institute’s management will submit the file to the Ministry of Labour and Social Security for the approval of the said collective agreement.
4. 337. In its second communication of February 2018, the Government sends a letter from the General Secretary of SITRAINFOM addressed to the Deputy Minister of Labour Administration. In this letter, the General Secretary of SITRAINFOM indicates that: (i) thanks to the accompaniment of the Deputy Minister of Labour, Mr Francisco Abraham Sandoval García, the collective conflict between the Institute and SITRAINFOM has been overcome in its administrative phase; (ii) the VII collective agreement on working conditions of the Institute was signed on 20 November 2017 and approved by the Institute’s executive committee on 30 November 2017; (iii) however, the definitive fulfilment of the obligations by the State of Guatemala requires the signing of the agreement at the jurisdictional level before the Second Court of Labour and Social Security that deals with the collective economic and social dispute submitted by SITRAINFOM; and (iv) due to the fact that the file at issue has not yet been retrieved at the said court, it has not yet been possible to sign the aforementioned agreement.

C. The Committee’s conclusions

1. 338. The Committee recalls that this case concerns: (i) the cancellation, in 2014, by the Ministry of Labour and Social Security, of the registration of the seventh collective agreement on working conditions (hereinafter the collective agreement) signed in October 2013 by SITRAINFOM and INFOM, an autonomous public institution (hereinafter the Institute), and the subsequent refusal by that public institution to give effect to that collective agreement, which had initially been registered by the Ministry of Labour and Social Security; and (ii) allegations of pressure on the representatives of SITRAINFOM to accept the renegotiation of the collective agreement.
2. 339. The Committee also recalls that, in its previous examination of the case, a brief reference had been made to additional information sent by the complainant organizations in January 2016 concerning the negotiation of the collective agreement and it had requested the Government to send its observations in that respect. The Committee notes that, in that additional information, the complainant organizations alleged that: (i) following the cancellation of the registration of the seventh collective agreement of the Institute, negotiations with the employer had resumed in July 2015; (ii) on 14 September 2015, with the support of the Ministry of Labour and Social Security and the Committee for the Settlement of Disputes, an amended version of the agreement had been approved with the Institute’s executive committee; (iii) following that approval, the executive committee, with the intention of further delaying the implementation of the agreement, had requested various public bodies to issue opinions on the financial viability of the new agreement; and (iv) ignoring the requests made by the Committee for the Settlement of Disputes and by the Ministry of Labour and Social Security, the Institute’s executive committee had refused to give effect to what had been signed.
3. 340. In this respect, the Committee notes that in the first semester of 2017 the Government sent the information provided by the independent mediator of the Committee for the Settlement of Disputes on the process of mediation carried out between the Institute and SITRAINFOM, indicating that: (i) the mediation process began in 2015 and the same year considerable progress was made towards the approval of a collective agreement; (ii) the approval process for the collective agreement was delayed by the new executive committee of the Institute, appointed following the change in government in January 2016, taking up its functions; (iii) the new executive committee decided, before resuming mediation, to establish a roadmap based on the various opinions relating to the content of the collective agreement issued by the competent bodies and taking into account the Government Agreement for Containing Costs; (iv) the mediation process resumed in December 2016 with a proposal by SITRAINFOM to define for 2017 the entry into force of the previously negotiated agreement and to agree the payment of the extraordinary one-off bonus for 2015 contained in that agreement but to cancel the payment corresponding to 2016; (v) on 3 February 2017, the Institute’s executive committee rejected the union’s proposal, considering that the payment of the extraordinary one-off bonus would risk destabilizing the institution, and proposed in exchange establishing a bipartite committee to analyse the respective financial documents and submit within 20 days proposals to facilitate the resumption of collective bargaining; and (vi) the Committee for the Settlement of Disputes is still awaiting the results of the work of the abovementioned bipartite committee in order to resume the mediation.
4. 341. The Committee also takes note that, in February 2018, the Government sent a communication from the President of the Institute and another one from the General Secretary of SITRAINFOM, from which it appears that: (i) thanks to the accompaniment of the new Deputy Minister Of Labour Administration, the Institute and SITRAINFOM resumed discussions during the second semester of 2017; (ii) the Institute identified funds of its own to finance the execution of the VII collective agreement on working conditions; (iii) the legal counsel of the Institute ruled that the said agreement complies with the legal and financial requirements established by law; (iv) based on the foregoing, the VII collective agreement on working conditions of the Institute was effectively signed on 20 November 2017 and approved by the Institute’s executive committee on 30 November 2017; and (v) it is still pending that the Second Court of Labour and Social Security, before which the collective dispute had been submitted, recognizes that the signing of the agreement constitutes a conciliation agreement that puts an end to the said conflict and that the Minister of Labour and Social Security approves the agreement.
5. 342. The Committee welcomes the developments described in the previous paragraph, which took place more than ten years after the negotiation of the VII collective agreement of the Institute began and more than four years after the initial signing of the agreement whose approval had finally been cancelled by the Ministry of Labour and Social Security. Recalling that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest of principles and decisions of the Committee of Freedom of Association, fifth (revised) edition, 2006, para. 940], the Committee expects that the Government will take the necessary measures so that the collective agreement of the Institute and SITRAINFOM, approved on 30 November 2017 by the Institute’s executive committee, will enter into force as soon as possible.
6. 343. More generally, the Committee recalls that, in its previous examination of the case, observing the existence of difficulties in determining the rules applicable in the public sector for “ad referendum” bargaining and for the verification of the financial viability of the content of negotiations, the Committee asked the Government to take, in consultation with the trade unions concerned, the necessary measures to ensure that collective bargaining procedures in the public sector followed clear guidelines which met both the requirements of financial sustainability and the principle of bargaining in good faith. Even though in the present complaint the accompaniment of the parties by the Ministry of Labour and Social Security allows a glimpse of the upcoming resolution of the conflict, the Committee also notes that it is clear from the elements provided by the complainant organization and the Government that the achievement of a solution was preceded by a long phase of uncertainty marked by the signature on two occasions (2013 and 2015) of agreements that were then rendered ineffective by the request, subsequently submitted by the executive committee of the public entity, of opinions of several public entities on the financial viability of the content of the agreements reached. Noting that these elements confirm the need to clarify in a general manner the rules applicable to collective bargaining in the public sector and recalling that it may avail itself of the technical assistance of the International Labour Office, the Committee again requests the Government to take the necessary measures in this respect, in consultation with the trade unions concerned.
7. 344. With respect to the criminal complaint filed in August 2014 by SITRAINFOM regarding alleged harassment, coercion, threats and trade union repression by the executive committee of the public entity at that time, the Committee takes note of the information provided by the Government in January 2017 whereby: (i) the case is currently at the investigation stage before the Public Prosecutor’s Office, which, on 29 October 2014, received an account of the alleged events from Mr Marvin Antonio Castañaza Mateo, General Secretary of SITRAINFOM; and (ii) security measures were granted for seven SITRAINFOM officials. While taking due note of the measures granted, the Committee observes that three-and-a-half years after the filing of the complaint, the Public Prosecutor’s Office has still not handed down a decision on it and that, apart from the hearing for the General Secretary of SITRAINFOM, it has received no information about any other measures taken by the Public Prosecutor’s Office to investigate the alleged facts. Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835], the Committee again asks that all the necessary measures will be taken to ensure that the complaint brought before the Public Prosecutor’s Office by SITRAINFOM gives rise to all the necessary inquiries as soon as possible.

The Committee’s recommendations

1. 345. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will take the necessary measures so that the collective agreement of the Institute and SITRAINFOM, approved on 30 November 2017 by the Institute’s executive committee, will enter into force as soon as possible.
   • (b) Recalling that it may avail itself of the technical assistance of the International Labour Office, the Committee again requests the Government to take, in consultation with the trade unions concerned, the necessary measures to ensure that collective bargaining procedures in the public sector follow clear guidelines which meet both the requirements of financial sustainability and the principle of bargaining in good faith.
   • (c) The Committee again asks that all the necessary measures will be taken to ensure that the complaint brought before the Public Prosecutor’s Office by SITRAINFOM gives rise to all the necessary inquiries as soon as possible.