Report in which the committee requests to be kept informed of development - Report No 400, October 2022

Case No 3251 (Guatemala) - Complaint date: 04-MAY-16 - Follow-up

Allegations: The complainant organization alleges the refusal to bargain collectively and several anti-union measures, including dismissals, transfers and acts of intimidation and interference, by several public institutions in their capacity as employers

1. 316. The complaint is contained in 12 communications by the Guatemalan Union, Indigenous and Peasant Movement (MSICG) dated 27 and 29 April and 2, 3 and 4 May 2016, and 31 January, 10 and 20 February, 23, 25 and 30 May and 2 June 2017.
2. 317. The Government of Guatemala sent its observations on the allegations in 15 communications dated 30 October 2017, 15 May, 21 August, and 13 and 17 September 2019, and 29 January, 1 and 17 February, 29 March, 12, 23 and 26 April, 5 and 7 May 2021, and 30 September 2022.
3. 318. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 319. In its communications dated 27 April 2016 and 25 May 2017, the complainant organization alleges that the State of Guatemala maintains an anti-union policy of mass dismissals of workers when they attempt to establish trade union organizations or exercise their right to collective bargaining. With regard to the Ministry of Culture and Sport, the complainant organization alleges in particular that: (i) after the establishment of the Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Culture and Sport (SINTRADEPORTES) on 24 June 2015, the employer dismissed the workers who had participated in its creation; (ii) requests for reinstatement submitted by the dismissed workers are being processed by the labour and social welfare courts of the department of Guatemala; (iii) the reinstatement orders issued at first instance have not been complied with; and (iv) the Ministry of Culture and Sport has begun transferring the other trade union members to different locations, has substantially changed their working conditions, and has mistreated them as a means of pressuring them into leaving their positions.
2. 320. The complainant organization also alleges that the Ministry of Culture and Sport filed an appeal for revocation against the registration of SINTRADEPORTES, which has made it impossible to register the leaders of the trade union. It indicates that, in February 2016, SINTRADEPORTES filed an objection with the General Labour Directorate, but that, to date, there has been no notification of a settlement. The complainant organization states that, consequently, the refusal to register the trade union officials has been illegally maintained, thus preventing the trade union from functioning despite the fact that it has legal personality.
3. 321. In its communications dated 29 April 2016 and 10 February 2017, the complainant organization states that: (i) on 5 November 2015, the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic (SITRASEC) filed a socio-economic collective dispute in response to the refusal by the employer to directly negotiate a list of claims submitted by SITRASEC; (ii) the first labour and social welfare judge for the admission of claims warned the parties not to retaliate against each other, and ordered that no dismissals should be carried out without an order by the competent judge within the procedure established by law; (iii) despite these preventive measures, the Secretariat of Public Works of the First Lady of the Republic of Guatemala proceeded to unlawfully carry out the dismissals of workers belonging to SITRASEC in December 2015 and January 2016, as an act of anti-union retaliation, in order to weaken the trade union’s leverage in the filing of the collective dispute; (iv) during the reinstatement proceedings before the labour and social welfare courts, 14 workers obtained favourable rulings in the courts of first instance, which were confirmed by the Court of Appeal; and (v) the employer refused to follow the reinstatement orders, and filed an application for proceedings for the protection of constitutional rights (amparo) before the Supreme Court of Justice.
4. 322. In its communications dated 27 and 29 April 2016, the complainant organization alleges that, with the aim of discouraging workers from joining trade unions and persuading them not to participate in collective bargaining processes, the Government has adopted a hiring policy involving the simulation of industrial relations, either by concealing the employment relationship under non-employment hiring arrangements, or by simulating the temporary nature of contracts, with fixed-term contracts being established despite the continuous and permanent nature of the services for which the workers are hired. In its communication of 20 February 2017, the complainant organization reports the use of this strategy by the Ministry of Education with technicians specialized in secondary-level distance learning, who were reportedly subject to precarious hiring procedures.
5. 323. The complainant organization also reports the close relationship between the Ministry of Education and the Education Workers’ Trade Union of Guatemala (STEG), which imposes a dialogue between the technicians specialized in secondary-level distance learning and STEG. In this regard, it states that: (i) joint boards have been established between the employer and delegates of STEG, which is a trade union under the employer’s control; (ii) these delegates may intervene in the selection of staff for the allocation of full-time positions, and have the authority to transfer workers to other workplaces; (iii) this situation provides STEG with a clear organizational advantage over other trade unions, and enables it to put pressure on workers to join STEG and to refrain from joining trade union organizations of their own choosing; and (iv) STEG has used these powers to repress workers who have opposed its claims.
6. 324. In its communication of 2 May 2016, the complainant organization alleges that: (i) the Union of Workers and Employees of the Municipality of Mixco submitted a list of claims to its employer, the municipality of Mixco; (ii) after the refusal by the employer to engage in such negotiations, the trade union filed a socio-economic collective dispute on 13 January 2016 before the First Labour and Social Welfare Court, which warned the parties not to retaliate against each other; (iii) the mayor of the municipality of Mixco requested the trade union to abandon the collective dispute, in order to give it the freedom to dismiss municipal workers to ensure positions for persons who had supported the current authorities during the recent electoral process; and (iv) when the trade union refused to do so, the employer launched a campaign of stigmatization against the exercise of legitimate trade union activities.
7. 325. According to the complainant organization, as part of the aforementioned campaign, the mayor of the municipality of Mixco, through publications on his official Facebook page, called on the population to take action and react against the legitimate actions of the trade union, openly qualifying the exercise of trade union rights as acts of opposition to the development of the municipality. The complainant organization also denounces publications in other media, in which the above-mentioned mayor led the population to believe that the trade union was responsible for acts of violence that occurred in the municipality. It indicates that, in response to the media’s refusal to publish its own version, the trade union filed appeals before the competent courts in order to exercise its constitutional right to clarification and reply. It also indicates that the acts carried out by the mayor were the subject of a criminal complaint that was referred to the unit for offences committed against trade unionists within the Public Prosecutor’s Office.
8. 326. The complainant organization indicates that the trade union filed retaliation claims before the Fifth Labour and Social Welfare Court, and that, despite the fact that the claims should have been settled within 15 days, they have yet to be resolved. It states that, in response to the use of legal mechanisms by the trade union, the employer has initiated various administrative proceedings in order to dismiss trade union officials. The complainant organization further maintains that, after the trade union reported the retaliation to which it was being subjected to the General Labour Inspectorate and the employer expressly recognized that the publications had been made in response to the filing of the collective dispute, the latter proceeded unilaterally and without notification to deduct almost the totality of the wages of the trade union officials, and even more from the general secretary of the trade union.
9. 327. In its communication of 3 May 2016, the complainant organization maintains that: (i) on 5 January 2016, the Union of Workers of the Municipality of San Lucas Tolimán in the department of Sololá (SITRAMSALT) was established; (ii) when it learned of the imminent establishment of the trade union, the employer intimidated workers so that they would abandon the process and, after these measures failed, it dismissed 13 workers who had participated in the establishment of the trade union in January and February 2016; (iii) complaints and requests for reinstatement were filed before the Labour and Social Welfare Court of First Instance of the municipality of Santiago Atitlán in the department of Sololá; (iv) on 21 April 2016, the judge proceeded to enforce the reinstatement of the majority of the dismissed workers; and (v) on 22 April 2016, the workers reported to their place of work, but were unable to take up their duties, as the staff hired by the mayor as their replacements had closed the offices to them.
10. 328. The complainant organization states that, when the workers attempted to return to their place of work: (i) one of them, Mr Gilberto Cosigua Panjoj, was physically assaulted by the mayor, and was insulted and threatened with death by the persons accompanying the mayor; (ii) Mr Panjoj was locked in the offices of the municipal treasury by the mayor and another person, and was illegally detained there for over 30 minutes; and (iii) in the meantime, the mayor made threatening statements to the workers and to the judge who had ordered their reinstatement. The complainant organization also alleges that the mayor summoned the population in front of the municipal council building to criminalize and stigmatize the workers, and to encourage the population to attack them. The complainant organization states that, owing to the above facts, it filed a complaint with the Public Prosecutor’s Office, requesting security measures.
11. 329. In its communication of 4 May 2016, the complainant organization maintains that: (i) workers from the municipality of Tiquisate established the Union of Organized Municipal Employees of Tiquisate in the Department of Escuintla (SEMOT) on 20 October 2015 in response to systematic violations of their labour rights, and this union was registered by the Ministry of Labour and Social Welfare on 22 January 2016; (ii) with the aim of pressuring workers to leave the trade union, the employer suspended the payment of their wages in full as from November 2015; (iii) the mayor and the members of the municipal council also harassed and threatened workers, demanding that they leave the trade union; (iv) after 29 workers left the trade union, the employer proceeded to pay their wages; (v) the wages of 102 workers continue to be withheld illegally, as they refuse to leave the trade union; and (vi) the mayor hired other workers to carry out the duties of the unionized workers, which even led to violence in some cases when the unionized workers were removed from their posts.
12. 330. In its communication of 31 January 2017, the complainant organization indicates that, in May 2016, it initiated ordinary labour proceedings before the Labour and Social Welfare Court of First Instance in the department of Escuintla, in order to demand the payment of outstanding wages and other benefits not received by the unionized workers. In this respect, it states that although, to date, the disputes have not been settled, each time the workers report to the court, two judges request them to withdraw their claims, pointing out that they are going to lose the proceedings in any case.
13. 331. Furthermore, the complainant organization maintains that, in June 2016, the employer followed through on its earlier threats and dismissed 81 unionized workers. It indicates that the dismissed workers filed an amparo appeal before the Pluripersonal Court of First Instance for Labour and Social Welfare of Escuintla, but that the appeal was rejected in a ruling dated 22 December 2016. It states that this decision was appealed by the above-mentioned workers before the Constitutional Court.
14. 332. In its communication of 23 May 2017, the complainant organization states that, when the new Chief Public Prosecutor and Head of the Public Prosecutor’s Office came into office, she obtained the necessary legal authorization and dismissed three leaders of the Union of Workers of the Criminal Investigation Directorate of the Public Prosecutor’s Office (SITRADICMP), including its disputes secretary, Mr José Reyes Canales, for failing to comply with transfers to remote parts of the country after the establishment of the trade union on 29 March 2007. It states that these trade union leaders filed amparo appeals before the Constitutional Court and were reinstated after rulings were issued ordering their reinstatement.
15. 333. The complainant organization also alleges that: (i) the employer uploaded pornography onto the shared computers on which the leaders and several members of SITRADICMP worked; (ii) two members of SITRADICMP were dismissed in relation to this fabrication; (iii) these members challenged their dismissals before the courts and were reinstated after the Constitutional Court issued rulings in their favour; (iv) after lengthy judicial proceedings to obtain the necessary authorization, Mr Reyes Canales was also dismissed; (v) Mr Reyes Canales filed an appeal for review with the Chief Public Prosecutor, but the appeal was declared inadmissible by a decision dated 26 April 2017; and (vi) Mr Reyes Canales also filed an amparo appeal before the Supreme Court of Justice, which is being processed.
16. 334. The complainant organization also states that the Chief Public Prosecutor initiated, through her agents and various NGOs, a stigmatization campaign against the MSICG and SITRADICMP, associating them and their leaders with organized crime. It maintains that the Chief Public Prosecutor attempted to take control of SITRADICMP, by encouraging a group of members of the trade union, with the prior agreement of the authorities of the Public Prosecutor’s Office, to simulate the holding of a trade union assembly and to draft minutes containing false facts. It states that criminal proceedings were initiated in this regard and that, on 12 May 2015, the Third Criminal Court for Drug Trafficking Offences and Environmental Crimes convicted, for the offence of continued falsification of facts, the former members of the trade union who drafted the false documents, and that the ruling was upheld by the Judicial Chamber. According to the complainant organization, the criminal investigation should also have been directed against the Chief Public Prosecutor, her lawyer and her private secretary, but the corresponding officer from the Public Prosecutor’s Office flatly refused to conduct the corresponding investigation and obstructed the criminal prosecution of the above-mentioned members of the trade union.
17. 335. In its communication of 30 May 2017, the complainant organization states that: (i) the National Office of the Attorney-General (hereafter “the Attorney-General’s Office” attempted to take control of the Union of Organized Workers of the National Office of the Attorney-General (STOPGN) by placing persons on its executive committee and advisory board during an extraordinary general assembly that had been convened for its trade union elections; (ii) after the failure of this assembly due to lack of quorum, persons associated with the employer convened another assembly in the name of STOPGN; (iii) when this strategy failed and STOPGN convened a new assembly, the employer attempted to block the participation of members of the trade union, and the same persons associated with the employer invaded the headquarters of the MSICG, where the assembly was being held, to insult and threaten the officials of the trade union, and to attempt to take MSICG documentation from them by force; (iv) during this process, the head of services of the Attorney-General’s Office threatened to dismiss and to assassinate several members of the trade union; and (v) STOPGN reported these events to the General Labour Directorate and the General Labour Inspectorate.
18. 336. Furthermore, the complainant organization alleges that the Attorney-General’s Office uses the media to promote campaigns of stigmatization against trade unionism and collective bargaining, and that it is taking advantage of this situation to promote the approval of the Basic Act of the National Office of the Attorney-General, with the aim of legislatively and unilaterally repealing the protections of workers arising from collective agreements on working conditions.
19. 337. In its communication of 2 June 2017, the complainant organization states that the National Institute of Forensic Sciences (hereafter “INACIF") is a public and autonomous institution responsible for carrying out expert work for the courts of the country. The complainant organization alleges that: (i) the registration of the Union of Workers of the National Institute of Forensic Sciences of Guatemala (SINTRAINACIF) on 14 May 2015 was followed by the dismissal of its organizers; (ii) although the organizers were reinstated, a policy of persecution, harassment and discrimination continued to be implemented against the trade union; (iii) workers are constantly threatened with dismissal or transfer to remote parts of the country if they join SINTRAINACIF; and (iv) the employer coerces members to leave the trade union if they wish to receive a promotion.
20. 338. The complainant organization also alleges that: (i) INACIF attempted to illegally remove Mr Juan Saca Aguilar, information and propaganda secretary of SINTRAINACIF, from his place of work; (ii) after filing multiple complaints, Mr Saca Aguilar was able to return to his place of work, but the employer stopped providing him with instruments for work and assigning him duties; and (iii) the employer initiated proceedings before the labour and social welfare courts to dismiss Mr Saca Aguilar, on the grounds that he does not report for work. The complainant organization also maintains that the employer changed the hours of Mr Marlon Alfonso Martínez, agency secretary of SINTRAINACIF, and assigned him additional duties to prevent him from participating in the meetings of the trade union’s executive committee.
21. 339. Furthermore, the complainant organization states that INACIF encouraged ordinary labour proceedings, requesting the cancellation of SINTRAINACIF’s registration before the Third Labour and Social Welfare Court, on the grounds, inter alia, that the workers who participated in its establishment had been hired on a temporary basis. According to the complainant organization, INACIF lacks procedural legitimacy for the submission of such a request, and the processing of the request legitimizes the interference of the employers in the exercise of freedom of association.

B. The Government’s reply

1. 340. In its communication of 17 September 2019, the Government reports that SINTRADEPORTES was registered on 18 January 2016, and that its legal personality remains valid, as there are no pending appeals or notifications. In a communication dated 30 September 2022, the Government also provides information on the requests for reinstatement filed by ten dismissed workers. It indicates that: (i) eight of the workers were reinstated after the issuance of reinstatement orders in their favour; (ii) one worker withdrew his request; and (iii) in another case, the worker was not reinstated, as an appeal filed by the employer against the first instance decision in her favour was declared admissible by the Judicial Chamber.
2. 341. In its communication of 17 February 2021, the Government provides information obtained from the Seventh Pluripersonal Labour and Social Welfare Court regarding eight of the SITRASEC workers who were dismissed. It indicates that: (i) six workers were reinstated and paid their outstanding wages and other employment benefits; (ii) one worker was reinstated and is in the process of receiving her outstanding wages and other employment benefits; and (iii) it was not possible to verify the reinstatement of one worker, as she did not report to the judicial body for the coordination of her reinstatement.
3. 342. In its communication of 30 September 2022, the Government forwards information obtained from the Pluripersonal Court of First Instance for Labour and Social Welfare of the department of Santa Rosa, according to which: (i) 68 secondary-level distance learning workers of the Ministry of Education filed ordinary labour proceedings which were declared admissible on 11 July 2016, as a continuous, uninterrupted and indefinite employment relationship between the workers and the Ministry was proven; and (ii) the Ministry was ordered to grant them indefinite contracts in the budget line allocated for this purpose, with the same functions for which they had been hired year after year.
4. 343. In its communication of 23 April 2021, the Government states that the Union of Workers and Employees of the Municipality of Mixco brought legal proceedings against the enterprise, Guatevisión, before the Fifth Justice of the Peace Civil Court regarding the constitutional guarantee of clarification and reply of the individuals concerned by a publication, and that these proceedings remain pending. Regarding the retaliation claims filed by the trade union, the Government indicates that: (i) when the First Labour and Social Welfare Court processed the collective dispute, the parties were warned not to retaliate against each other and that any termination of a labour contract should be authorized by a competent judge; (ii) on 20 September 2018, the parties reached an understanding on a collective agreement on working conditions; (iii) on 4 December 2018, the previously decreed preventive measures were annulled and lifted; and (iv) specific actions and measures have been taken to promote, encourage and protect the right to collective bargaining in the municipalities since 2020, through a request for technical and financial support in order to hold a workshop on collective bargaining and social dialogue in collaboration with the ILO.
5. 344. In its communications of 23 April 2021 and 30 September 2022, the Government provides information on the reinstatements of the 13 dismissed workers that are being processed by the Labour and Social Welfare Court of First Instance of the municipality of Santiago Atitlán in the department of Sololá. It indicates that, in the 13 cases, the Public Prosecutor’s Office recorded or was ordered to record an act of disobedience, as the municipality of San Lucas Tolimán did not comply with the reinstatement order.
6. 345. Regarding the criminal complaint filed before the Public Prosecutor’s Office, the Government states that: (i) preliminary proceedings were filed against the mayor of the municipality of San Lucas Tolimán, but the mayor died, which extinguished his criminal liability; (ii) as part of the investigations, it was determined, in accordance with witness statements, that the events reported occurred with the participation of another person; (iii) however, it was not possible to prove this, as the injured party, Mr Panjoj, did not come forward to testify, even though he had been duly summoned to the corresponding public prosecutor’s office; and (iv) it was therefore not possible to bring the matter before the courts.
7. 346. In its communications of 29 January 2021 and 30 September 2022, the Government indicates that, on 20 December 2015, SEMOT filed a complaint against the General Labour Inspectorate with regard to the withholding of the wages of its members. It maintains that, after a hearing held on 3 February 2016, the General Labour Inspectorate warned the employer to refrain from retaliation of any kind against the members of the trade union.
8. 347. In its communication of 12 April 2021, the Government indicates that an amparo appeal filed by the 81 dismissed workers (who had been appointed by the former mayor between October 2015 and January 2016) against the municipal council and the mayor of Tiquisate, was declared inadmissible in a ruling dated 22 December 2016. It states that, following an appeal, the decision was upheld by the Constitutional Court in a ruling dated 3 July 2017.
9. 348. In its communication of 30 October 2017, the Government forwards the observations of the Public Prosecutor’s Office on the allegations made against it. Regarding the dismissal of Mr Reyes Canales as a result of the discovery of pornographic material, the Public Prosecutor’s Office states that: (i) following disciplinary proceedings against him, a decision dated 21 July 2009 was issued, which established that he should be removed from his post by means of justified direct dismissal; (ii) by virtue of the right to immunity of Mr Reyes Canales, and in strict observance and application of the constitutional principles of the right to defence and due process, it brought the matter before the judicial body with the aim of requesting authorization to terminate the employment relationship; (iii) its claim was heard by the competent jurisdictional bodies and was finally resolved by the Labour and Social Welfare Appeals Court, which declared it admissible on 5 April 2017; and (iv) in compliance with the above, Mr Reyes Canales was dismissed on 20 de April 2017. The Government concludes that, given that judicial authorization was obtained before the dismissal of Mr Reyes Canales, no violation of freedom of association by the Public Prosecutor’s Office can be observed.
10. 349. In its communications of 21 August 2019 and 13 September 2019, the Government confirms that, after Guatemalan domestic legal proceedings had been exhausted, Mr Reyes Canales was dismissed, as pornographic material had been found on the computer equipment that had been allocated to him. It also confirms that the other two leaders and the two members of SITRADICMP who had been dismissed by the Public Prosecutor’s Office were reinstated following the issuance of judicial decisions in their favour.
11. 350. In its communications of 30 October 2017 and 1 February 2021, the Government forwards the observations of the Attorney-General’s Office on the allegations made against it. The Attorney-General’s Office categorically denies the alleged interference in the election of STOPGN officials, emphasizing that it did not intervene in STOPGN’s membership procedures or in the organization of its assemblies. It states that the persons involved were acting in their personal capacity and, under no circumstances, did they represent the will or opinion of the employer. Regarding its head of services, the Attorney-General’s Office indicates that, at the time of the alleged events, he was serving as a member of STOPGN’s advisory board, and therefore represented the interests of the trade union and not those of the employer.
12. 351. Concerning the alleged stigmatization campaigns, the Attorney-General’s Office states that it is totally untrue that it is attacking collective bargaining in the media. It further indicates that Decree No. 512, which serves as a legal basis for its actions, is outdated, and that, consequently, in 2016 and 2017, Bills Nos 5154 and 5156, which put forward the Basic Act of the National Office of the Attorney-General, were tabled. The Attorney-General’s Office states that these Bills are being examined in the Congress of the Republic of Guatemala, and emphasizes that it respects the right to collective bargaining.
13. 352. In its communication of 30 October 2017, the Government provides the observations of INACIF, stating that its current administration, which began on 18 July 2017, cannot be held accountable for internal policies related to past administrations, but that it has implemented a policy for respecting freedom of association and all rights deriving from it. It indicates that, in the current administration, any worker who has the appropriate profile and the respective qualifications is taken into consideration for promotion, and that several unionized workers have been promoted.
14. 353. Regarding the allegations related to Mr Saca Aguilar, INACIF maintains that he did not perform his duties and received remuneration without consideration of any kind, which constitutes gross misconduct, but maintains that it has respected his right to defence and due process. Concerning the allegations related to Mr Alfonso Martínez, INACIF indicates that the criteria for the allocation of shifts are not based on any type of retaliation. It states that the number of staff is too limited to carry out the functions that it performs, and that priority is given to the interests of the Guatemalan population, without preventing workers from participating in trade union activities. With regard to the proceedings requesting the cancellation of SINTRAINACIF’s registration, INACIF states that the fact that an employer has recourse to the labour justice bodies of the country does not constitute a violation of any rights of workers, but rather guarantees the protection of their rights.
15. 354. In its communication of 15 May 2019, the Government states that ordinary labour proceedings concerning the request for authorization to dismiss Mr Saca Aguilar are still being processed by the First Labour and Social Welfare Court. It also states that, on 22 September 2017, a claim filed by INACIF against the decision ordering the registration of the trade union was declared inadmissible by the Third Labour and Social Welfare Court, and that this decision was upheld on 8 May 2018 by the Fifth Labour and Social Welfare Chamber following an appeal filed by INACIF.

C. The Committee’s conclusions

355The Committee notes that, in the present case, the complainant organization alleges a series of anti-union measures, including dismissals, transfers and acts of intimidation and interference, by nine public institutions in their capacity as employers. It notes that, according to the complainant organization, several of these measures were taken in response to the establishment of trade unions or in the context of collective disputes. The Committee notes that the Government provides information on the judicial proceedings conducted as a result of some of these measures, and that it forwards the observations of certain public entities, which deny most of the allegations against them.

356The Committee wishes to indicate that some of the allegations included in the communications sent by the complainant organization are not being examined in this case, as they have already been addressed in the context of other cases for which the Committee has already issued recommendations.

357The Committee notes the complainant organization’s allegations that: (i) following the establishment of SINTRADEPORTES on 24 June 2015, workers who had participated in its creation were dismissed; (ii) the dismissed workers filed requests for reinstatement, which are being processed by the labour and social welfare courts; and (iii) the employer has not complied with the reinstatement orders issued at first instance. The Committee notes that the Government provides information on the requests for reinstatement filed by ten dismissed workers, indicating that eight were reinstated after the issuance of reinstatement orders in their favour, one withdrew his request, and one was not reinstated as the employer filed an appeal against the first instance decision in her favour and the appeal was declared admissible by the Judicial Chamber. The Committee duly notes this information and therefore will not pursue its examination of these allegations.

358The Committee also notes that the complainant organization states that the employer allegedly started transferring the other members of SINTRADEPORTES to different locations, substantially changed their working conditions, and mistreated them in order to pressure them into leaving their posts. Observing that the Government does not reply to these allegations, the Committee recalls that protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1087]. The Committee requests the Government to take the necessary measures to conduct an inquiry into the alleged acts of anti-union discrimination against the members of SINTRADEPORTES, and, if found to be true, to take appropriate remedial measures and sanctions. The Committee requests the Government to keep it informed of any developments in this respect.

359The Committee also notes the complainant organization’s further allegations that: (i) the Ministry of Culture and Sport filed an appeal for revocation against the registration of SINTRADEPORTES, which means that the trade union cannot register its leaders; and (ii) the trade union filed an objection before the General Labour Directorate, but there has been no notification of a resolution. The Committee notes the Government’s indication in this regard that SINTRADEPORTES is registered, that its legal personality is valid, and that there are no pending appeals or notifications. In light of this information, the Committee trusts that the Government will ensure that the leaders of SINTRADEPORTES have been duly registered.

360The Committee notes that the complainant organization maintains that: (i) in retaliation for the filing of a socio-economic collective dispute, the Secretariat of Public Works of the First Lady of the Republic of Guatemala dismissed the members of SITRASEC in December 2015 and January 2016; (ii) the first instance labour and social welfare courts ordered the reinstatement of 14 workers, and the decisions were upheld by the Court of Appeal; and (iii) the employer refused to comply with the reinstatement orders and filed amparo appeals before the Supreme Court of Justice. The Committee notes that the Government provides information on the follow-up given to eight of the reinstatement orders issued, stating that seven of the dismissed workers were reinstated and that six of them already received their outstanding wages and other employment benefits. The Committee expects the Government to take the necessary measures to ensure full compliance with the reinstatement orders issued in favour of the members of SITRASEC, and requests it to provide information on the outcome of the amparo appeals filed by the employer before the Supreme Court of Justice.

361The Committee notes that the complainant organization: (i) alleges that the Government uses fixed-term contracts despite the continuous nature of the services provided by its workers, with the aim of discouraging trade union membership and participation in collective bargaining processes; and (ii) denounces in particular the use of such a strategy by the Ministry of Education with technicians specialized in secondary-level distance learning. The Committee also notes the Government’s indication that a decision dated 11 July 2016 of the Pluripersonal Court of First Instance for Labour and Social Welfare of the department of Santa Rosa recognized that there was a continuous, uninterrupted and indefinite employment relationship between 68 secondary-level distance learning workers and the Ministry of Education, and ordered the Ministry to grant them indefinite contracts. The Committee recalls that fixed-term contracts should not be used deliberately for anti-union purposes .and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights [see Compilation, para. 1096 and 377th Report, Case No. 3064 (Cambodia), para. 213]. The Committee trusts that the Government will pay attention to this criterion, and that it will ensure that fixed-term contracts are not used to hinder the enjoyment of the rights of freedom of association of the technicians specialized in secondary-level distance learning who work for the Ministry of Education.

362362. Furthermore, the Committee notes that the complainant organization maintains that: (i) joint boards have been established between the management of the Ministry of Education and delegates of STEG; (ii) these delegates can participate in decisions on the selection of staff and the transfer of workers; and (iii) this advantageous situation enables STEG to pressure workers into joining STEG and not to join other trade union organizations. The Committee regrets that the Government has not provided replies to this allegation. Observing that STEG is considered to be the most representative trade union in the education sector in the country, the Committee recalls that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited. Minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them [see Compilation, para. 1388]. The Committee therefore trusts that the Government will adopt the necessary measures to ensure that the other trade unions of the Ministry of Education are able to freely exercise their activities.

363The Committee notes the complainant’s allegations that: (i) after the filing of a socio-economic collective dispute in January 2016 by the Union of Workers and Employees of the Municipality of Mixco, the First Labour and Social Welfare Court prevented the parties from retaliating against each other; (ii) despite this, the employer carried out a media campaign stigmatizing the exercise of legitimate trade union activities, during which the mayor of the municipality linked the trade union to acts of violence that had occurred in the municipality; (iii) in response to this media campaign, the trade union filed retaliation claims before the Fifth Labour and Social Welfare Court and the General Labour Inspectorate, and a criminal complaint against the mayor; and (iv) in reaction to this use of legal mechanisms, the employer initiated administrative proceedings to dismiss the leaders of the trade union and deducted almost the totality of their wages. The Committee notes the Government’s indication that: (i) after the signing of a collective agreement on working conditions between the parties in September 2018, the preventive measures decreed by the court regarding retaliation were lifted; and (ii) since 2020, specific action has been taken to promote, encourage and protect the right to collective bargaining in the municipalities of the country in collaboration with the ILO.

364While it notes the Government’s indication that a collective agreement was signed between the parties, the Committee observes that the Government does not deny the allegations of retaliation against the trade union and its leaders in the context of the exercise of their right to collective bargaining. In this respect, the Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Compilation, para. 1076]. The Committee requests the Government to investigate the alleged anti-union retaliation by the municipality of Mixco, in particular the wage deductions, and if found to be true, to ensure the availability of appropriate remedies for the trade union leaders affected and the imposition of sufficiently dissuasive penalties. The Committee requests the Government to keep it informed in this respect, and of the outcome of the criminal complaint filed by the trade union.

365The Committee notes the complainant organization’s indication that: (i) in January and February 2016, after learning about the imminent establishment of SITRAMSALT, the municipality of San Lucas Tolimán dismissed the 13 workers who participated in the creation of the trade union; (ii) these workers filed reinstatement claims before the First Instance Labour and Social Welfare Court of the municipality of Santiago Atitlán in the department of Sololá; and (iii) after the issuance of decisions in their favour, most of the workers attempted to return to their place of work but were denied access. The Committee notes the Government’s indication in its reply that: (i) in the 13 cases, the municipality did not comply with the reinstatement order and, therefore, Public Prosecutor’s Office recorded or was ordered to record an act of disobedience. In this regard, the Committee recalls that respect for Convention No. 98 requires that workers should not be dismissed or refused reinstatement for engaging in legitimate trade union activities. The Committee requests the Government to take the necessary measures to ensure compliance with the reinstatement orders issued in favour of the 13 SITRAMSALT members, and to keep it informed of any developments in this respect.

366The Committee further notes that the complainant organization maintains that: (i) while the members of SITRAMSALT attempted to return to their place of work, one of them was assaulted physically by the mayor of the municipality, was insulted and threatened with death by the persons accompanying the mayor, and was locked in the offices of the municipal treasury by the mayor and another person; (ii) the mayor also made intimidating statements to the members of SITRAMSALT and to the judge who had ordered their reinstatement, and encouraged the population to attack them; and (iii) it filed a complaint with the Public Prosecutor’s Office to request security measures for the reinstated workers and the judge who executed the reinstatement orders. The Committee further notes the Government’s indication that: (i) preliminary proceedings were filed against the mayor in relation to the above-mentioned facts, but the mayor died, which extinguished his criminal liability; and (ii) the investigations determined that the alleged events occurred with the participation of another person, but that it was not possible to prove this, as the aggrieved worker did not come forward to testify, and it was therefore not possible to bring the matter before the courts. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation, para. 84]. The Committee requests the Government to take the necessary measures to ensure that the members of SITRAMSALT are able to exercise their rights in a climate that is free from violence, fear and intimidation of any kind.

367The Committee notes the complainant organization’s allegation that: (i) after the establishment of SEMOT in October 2015, the employer harassed and threatened its members, and suspended the payment of their wages, with the aim of pressuring them into leaving the trade union; (ii) the municipality resumed payment of the wages of the workers who had left the trade union, while the wages of the 102 workers who refused to do so continue to be withheld; (iii) the employer removed several unionized workers from their workplaces, in some cases violently; and (iv) in May 2016, the members of SEMOT initiated ordinary labour proceedings before the First Instance Labour and Social Welfare Court in the department of Escuintla to claim the payment of their wages and other outstanding benefits. The Committee notes that the Government merely informs that SEMOT filed a complaint regarding the withholding of its members’ wages with the General Labour Inspectorate, and that the General Labour Inspectorate warned the municipality to abstain from retaliation of any kind against the members in question.

368The Committee notes the alleged facts and the decision issued by the General Labour Inspectorate. The Committee also observes that, in the context of Case No. 2609 concerning numerous acts of anti-union violence, it examined the murder of a leader of SEMOT, and death threats against members of this trade union, urging the Government to take the necessary measures to prevent the commission of any further acts of anti-union violence against members of the trade union. The Committee recalls that coercing trade union members into leaving the trade union constitutes a serious violation of Conventions Nos. 87 and 98 that consecrate the right of workers to freely join the organization of their own choice and the principle of the adequate protection of this right. It also recalls 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 Compilation, paras 1199 and 1159]. In this context, the Committee requests the Government to conduct an impartial inquiry into the alleged acts of anti-union intimidation and discrimination against the members of SEMOT and, if the allegations are found to be true, to adopt appropriate measures of redress and penalties. The Committee also requests the Government to provide information on the outcome of the appeals filed before the First Instance Labour and Social Welfare Court in the department of Escuintla.

369The Committee also notes that the complainant organization maintains that: (i) 81 members of SEMOT were dismissed in June 2016; and (ii) on 22 December 2016, an amparo appeal filed before the Pluripersonal Court of First Instance for Labour and Social Welfare of Escuintla by these workers was rejected, and the decision was appealed before the Constitutional Court. The Committee notes the Government’s indication that the above-mentioned workers had been appointed by the former mayor between October 2015 and January 2016, and that the ruling of 22 December 2016 was upheld by the Constitutional Court on 3 July 2017. Duly noting the decisions issued, the Committee will not pursue the examination of this aspect of the case.

370The Committee notes the complainant organization’s allegations that: (i) following the establishment of SITRADICMP on 24 May 2007, the Public Prosecutor’s Office attempted to transfer three leaders of the trade union, including its disputes secretary, Mr José Reyes Canales, and dismissed them for failing to comply with the transfers; (ii) the three leaders were reinstated after filing appeals before the Constitutional Court; (iii) the employer uploaded pornography onto the computers used by SITRADICMP, which led to the dismissal of two members of the trade union, who challenged these decisions and were reinstated; (iv) Mr Reyes Canales was also dismissed on these grounds after the necessary authorization was obtained; and (v) Mr Reyes Canales filed an appeal for review with the Chief Public Prosecutor, which was declared inadmissible, as well as an amparo appeal before the Supreme Court of Justice, which is being processed. The Committee notes the indication of the Public Prosecutor’s Office, in its observations forwarded by the Government, that: (i) following disciplinary proceedings against him, it was established that Mr Reyes Canales should be dismissed for just cause; and (ii) by virtue of his right to immunity, judicial authorization to terminate the employment relationship was requested and obtained. It also notes that the Government confirms the dismissal of Mr Reyes Canales following the discovery of pornographic material on computer equipment allocated to him, and the reinstatement of the other four members of the SITRADICMP. The Committee duly notes these reinstatements, and the diverging opinions expressed by the complainant organization and the Public Prosecutor’s Office concerning the true motive for the dismissal of Mr Reyes Canales. The Committee requests the Government to keep it informed of the outcome of the amparo appeal filed by Mr Reyes Canales before the Supreme Court of Justice.

371The Committee notes the complainant organization’s allegations that: (i) in the context of a campaign of anti-union stigmatization, the Chief Public Prosecutor attempted to take control of SITRADICMP through an agreement with some of its members, who simulated the holding of a trade union assembly and drafted false minutes; (ii) the Third Criminal Court for Drug Trafficking Offences and Environmental Crimes issued a ruling dated 12 May 2015 against three now-former members for the offence of continuous falsification of facts, and the ruling was upheld by the Judicial Chamber; and (iii) the officer from the Public Prosecutor’s Office responsible for the case obstructed the criminal investigation that should also have targeted the Chief Public Prosecutor, her lawyer and her private secretary. While it notes that the Government has not provided replies concerning these allegations, the Committee, in view of the judicial decisions already issued in this regard and the vagueness of the allegations on the link between the convicted former trade union members and the Chief Public Prosecutor, will not pursue the examination of this aspect of the case.

372The Committee notes the complainant organization’s allegations that: (i) the Attorney-General’s Office attempted to take control of STOPGN by placing individuals on its executive committee and advisory board during an extraordinary general assembly convened for STOPGN’s trade union elections; (ii) after the failure of this assembly, persons associated with the employer unsuccessfully attempted to convene another assembly in the name of STOPGN; (iii) after the convening of a new assembly by the trade union and a failed attempt by the Attorney-General’s Office to block the participation of members, the same persons associated with the employer interrupted this assembly, insulted and threatened the trade union officials, and tried to remove documentation by force; (iv) the head of services of the Attorney-General’s Office then threatened to dismiss and to assassinate several members of the trade union; and (v) these events were reported to the General Labour Directorate and the General Labour Inspectorate. The Committee also notes the observations of the Attorney-General’s Office provided by the Government, in which the Attorney-General’s Office: (i) categorically denies any intervention in the organization of STOPGN’s assemblies; (ii) maintains that the persons involved acted in their personal capacity; and (iii) emphasizes that, at the time of the alleged events, its head of services was a member of STOPGN’s advisory board.

373Noting the diverging versions of the complainant organization and the Attorney-General’s Office concerning the participation of the employer in the events that took place, and the trade union membership of its head of services at the time, the Committee recalls that the organization of trade union elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87. It also recalls that the environment of fear induced by threats to the life of trade unionists has inevitable repercussions on the exercise of trade union activities, and the exercise of these activities is possible only in a context of respect for basic human rights and in an atmosphere free of violence, pressure and threats of any kind [see Compilation, paras 591 and 116]. The Committee expects the Government to take the necessary measures to ensure that STOPGN is able to exercise its legitimate activities without interference or intimidation of any kind, and to carry out the relevant investigations of the facts reported to the General Labour Directorate and the General Labour Inspectorate.

374The Committee further notes that, according to the complainant organization, the Attorney-General’s Office uses the media to promote campaigns of anti-union stigmatization and the approval of the Basic Act of the National Office of the Attorney-General, with the aim of repealing the protective measures resulting from the collective agreements on working conditions. In this regard, it notes that the Attorney-General’s Office: (i) denies having attacked collective bargaining in the media; and (ii) states that two drafts of the Basic Act of the National Office of the Attorney-General are being examined by the Congress of the Republic of Guatemala, as Decree No. 512, which serves as a legal basis for its actions, is outdated. The Committee observes from the publicly available information that the above-mentioned Bills were debated in Congress in September and October 2018, but that no approval of the Bills was notified. In view of this information, and noting the general nature of these allegations, the Committee will not pursue the examination of the allegations.

375The Committee notes the complainant organization’s indication that: (i) following the registration of SINTRAINACIF on 14 May 2015, its organizers were dismissed; (ii) although the organizers were reinstated, a policy of anti-union persecution, harassment and discrimination continued to be applied, as INACIF workers were threatened with dismissal or transfer if they joined SINTRAINACIF; and (iii) the employer coerced members, making it clear that they would have to leave the trade union if they wished to receive a work promotion. The Committee notes that the Government forwarded the observations of INACIF, which maintains that its current administration, which began in July 2017, cannot be held accountable for internal policies related to past administrations, but that it has implemented a policy for respecting freedom of association, takes into consideration all workers who meet the necessary requirements, and granted promotions to several unionized workers. While it notes the changes that have occurred since July 2017, the Committee observes that INACIF does not deny the alleged events, which reportedly took place before the start of its current administration. The Committee trusts that the Government has ensured that all workers whose professional development may have been affected as a result of belonging to SINTRAINACIF have been duly compensated.

376The Committee notes that, according to the complainant organization, the employer attempted to remove Mr Juan Saca Aguilar, information and propaganda secretary of SINTRAINACIF, from his place of work, stopped providing him with instruments for work and assigning him duties, and initiated judicial proceedings to dismiss him for not reporting to work. The Committee notes INACIF’s indication that Mr Saca Aguilar did not perform his duties while he was receiving remuneration, which constitutes gross misconduct, and the Government’s indication that a request for authorization to dismiss Mr Saca Aguilar is being processed before the First Labour and Social Welfare Court. The Committee notes the contradictory versions of the complainant organization and INACIF regarding the events. In these circumstances, the Committee requests the Government to keep it informed of the outcome of the request for authorization to dismiss Mr Saca Aguilar which is pending before the First Labour and Social Welfare Court.

377The Committee also notes that the complainant organization maintains that the employer changed the hours of Mr Marlon Alfonso Martínez, agency secretary of SINTRAINACIF, and assigned him additional duties to prevent him from participating in trade union meetings. It also notes INACIF’s indication that its criteria for the allocation of shifts are not based on retaliation, that it has a limited number of staff, and that it gives priority to the interests of the population, without preventing workers from participating in trade union activity. The Committee recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and it is for employers and workers’ organizations to agree on the modalities for exercising this right [see Compilation, para. 1585]. Noting the divergent positions expressed by the complainant organization and by the public institution, the Committee invites the Government to encourage the parties to find a mutual solution to this dispute.

378The Committee also notes the complainant organization’s allegation that INACIF filed ordinary labour proceedings to request the cancellation of SINTRAINACIF’s registration, alleging, inter alia, that the workers who participated in the establishment of SINTRAINACIF had been hired on a temporary basis. The Committee notes that INACIF maintains that an employer’s recourse to the labour justice bodies of the country does not constitute a violation of workers’ rights. It also notes the Government’s indication that, on 22 September 2017, the request was declared inadmissible by the Third Labour and Social Welfare Court, and that this decision was upheld by the Fifth Labour and Social Welfare Chamber on 8 May 2018. In this regard, the Committee recalls that all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [see Compilation, para. 390]. In light of the judicial decisions issued, the Committee will not pursue the examination of this aspect of the case.

379379. In general, the Committee observes that several of the allegations in this case refer to the question of compliance with judicial orders for reinstatement. The Committee recalls that it has referred to this matter on several occasions in other cases regarding the Government of Guatemala (see Case No. 2948, 382nd Report, June 2017, paragraph 379; Case No. 3062, 376th Report, October 2015, paragraph 585; Case No. 3042, 376th Report, October 2015, paragraph 568). The Committee also recalls that the road map adopted by the Government in October 2013 as a result of the complaint regarding Guatemala’s non-observance of Convention No. 87, made under article 26 of the ILO Constitution, highlighted the importance and urgency of complying with and enforcing labour court rulings with the aim of strengthening the rule of law in the country. In view of the above, the Committee once again urges the Government to take, in consultation with the social partners, all necessary steps, including legislative measures if required, to ensure effective and prompt compliance with judicial orders for reinstatement. The Committee requests the Government to keep it informed in this respect, and observes that, within the framework of the road map adopted in 2013, the Government has, following the joint Mission of ILO, IOE, and ITUC undertaken from 20 to 23 September 2022, accepted the Office’s technical assistance in this regard.

The Committee’s recommendations

1. 380. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to conduct an inquiry into the alleged acts of anti-union discrimination against the members of SINTRADEPORTES and, if found to be true, to take appropriate remedial measures and sanctions. The Committee requests the Government to keep it informed of any developments in this respect.
   • (b) The Committee expects the Government to take the necessary measures to ensure full compliance with the reinstatement orders issued in favour of the members of SITRASEC, and requests it to provide information on the outcome of the amparo appeals filed by the employer before the Supreme Court of Justice.
   • (c) The Committee trusts that the Government will ensure that fixed-term contracts are not used to hinder the enjoyment of the rights of freedom of association of the technicians specialized in secondary-level distance learning who work for the Ministry of Education.
   • (d) The Committee requests the Government to investigate the alleged acts of anti-union retaliation carried out by the municipality of Mixco, in particular the wage deductions and, if found to be true, to ensure the availability of appropriate remedies for the trade union leaders affected and the imposition of sufficiently dissuasive penalties. The Committee requests the Government to keep it informed in this regard, and of the outcome of the criminal complaint filed by the Union of Workers and Employees of the Municipality of Mixco.
   • (e) The Committee requests the Government to take the necessary measures to ensure compliance with the reinstatement orders issued in favour of 13 members of SITRAMSALT, and to keep it informed of any developments in this respect.
   • (f) The Committee requests the Government to take the necessary measures to ensure that members of SITRAMSALT are able to exercise their rights in a climate free from violence, fear and intimidation of any kind.
   • (g) The Committee requests the Government to conduct an impartial inquiry into the alleged acts of anti-union intimidation and discrimination against members of SEMOT and, if found to be true, to adopt appropriate measures of redress and penalties. The Committee also requests the Government to provide information on the outcome of the appeals filed before the Labour and Social Welfare Court of First Instance in the department of Escuintla.
   • (h) The Committee requests the Government to keep it informed of the outcome of the amparo appeal filed by Mr Reyes Canales before the Supreme Court of Justice.
   • (i) The Committee expects the Government to adopt the necessary measures to ensure that STOPGN is able to exercise its legitimate activities without interference or intimidation of any kind, and to conduct the relevant inquiries regarding the facts reported to the General Labour Directorate and the General Labour Inspectorate.
   • (j) The Committee requests the Government to keep it informed of the outcome of the request for authorization to dismiss Mr Saca Aguilar, which remains pending before the First Labour and Social Welfare Court.
   • (k) The Committee once again urges the Government to take, in consultation with the social partners, all necessary steps, including legislative measures if required, to ensure effective and prompt compliance with judicial orders for reinstatement. The Committee requests the Government to keep it informed in this respect, and observes that, within the framework of the road map adopted in 2013, the Government has, following the joint Mission of ILO, IOE, and ITUC undertaken from 20 to 23 September 2022, accepted the Office’s technical assistance in this regard.