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

Case No 3326 (Guatemala) - Complaint date: 29-MAY-18 - Follow-up

Allegations: The complainant organization alleges that, after collective agreements on working conditions were signed with two enterprises in the transport sector, and following complaints to the General Labour Inspectorate, the members and officials of the trade unions of those enterprises were subjected to acts of interference, anti-union dismissals and non-compliance with the relevant court decisions

1. 381. The complaint is contained in a communication of 24 May 2018 from the National Federation of Workers (FENATRA).
2. 382. The Government sent observations in communications of 1 February, 26 April, 4 September and 8 October 2019, 17 February 2020, 15 April and 5 and 31 August 2021, and 1 February, 21 July and 29 September 2022.
3. 383. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 384. In its communication of 24 May 2018, the complainant organization states that, in September 2015 and November 2016 respectively, two enterprise trade unions were established in the transport sector, namely: (i) the Trade Union of Workers of the enterprise Expansión Corporativa Milenium S.A. (SINTRAEXCORMISA); and (ii) the Trade Union of Workers of the enterprise Rutas Metropolitanas de Transporte S.A. (SITRAERUMSA), for the purpose of defending the rights of the workers of the respective enterprises (hereinafter Enterprise 1 and Enterprise 2), which are known under the corporate identity of Transurbano (hereinafter the urban transport consortium). The complainant organization alleges that the above-mentioned trade unions submitted draft collective agreements on working conditions to both employers, but the employers never entered into direct negotiations on the agreements, as they always prevented the planned negotiation sessions from taking place. The complainant organization goes on to explain that the employers’ refusal to enter into direct negotiations led to collective disputes of an economic and social nature being brought before the labour courts, and that following several sessions in the conciliation tribunals of the labour courts: (i) a collective agreement on working conditions between Enterprise 1 and SINTRAEXCORMISA was signed on 10 May 2017; and (ii) a collective agreement on working conditions between Enterprise 2 and SITRAERUMSA was signed on 26 October 2017.
2. 385. The complainant organization alleges that, since the two collective agreements were signed, not only have the enterprises failed to respect the agreed terms, but they have also embarked on a campaign of retaliation against the executive committees and members of the two unions, in view of the complaints that the unions were constantly filing with the General Labour Inspectorate and other bodies, alleging labour rights violations. The complainant organization alleges in particular that, in March 2018, Enterprise 1 came up with a strategy designed to destroy SINTRAEXCORMISA, which involved drafting withdrawal letters, with signatures that had supposedly been certified by a notary, to coerce and intimidate workers into leaving the union under the pretext that they would obtain better economic and working conditions. In this regard, it provides a communication dated 13 March 2018, signed by the human resources manager of the urban transport consortium, notifying the union of 24 withdrawals of membership, as well as copies of three withdrawal letters, signed by the workers Mr José Irlando Salazar Hernández, Mr Willford Manolo Ramirez de León and Mr Saúl Humberto Chitiquez Castañeda.
3. 386. The complainant organization also alleges the unlawful dismissal of workers by these enterprises, stating that the enterprises often do not comply with court decisions to reinstate workers and, if they do, they do not assign the workers any work, applying a form of psychological pressure to force them to resign. With regard to the dismissals, the complainant organization communicates a decision of the Sixth Labour and Social Security Court of 14 March 2018 concerning Mr Héctor Eduardo Jiménez Alvarado. The complainant organization specifies, in this regard, that the labour court ordered a criminal investigation into the crime of disobedience to be opened against those responsible for the failure to comply with the court reinstatement orders. It also states that the unions reported both enterprises for having appropriated the social security contributions deducted from the workers rather than making the payments to the Guatemalan Social Security Institute (IGSS).
4. 387. Lastly, the complainant organization reports that an attempt was made to establish a round-table dialogue at the Ministry of Labour and Social Security between the enterprises and the trade unions, but that the process was undermined from the outset by the stalling tactics of the officials and legal advisers involved.

B. The Government’s reply

1. 388. In its communication of 4 September 2019, with regard to the allegations concerning the strategy of Enterprise 1 to force its workers to withdraw their union membership, the Government states that: (i) according to the records of the computer system of the Public Prosecutor’s Office for monitoring investigations, “there is no record of a complaint in 2018 concerning Mr José Irlando Salazar Hernández, Mr Willford Manolo Ramírez de León or Mr Saúl Humberto Chitiquez Castañeda”; (ii) there is a complaint against Enterprise 1, but these individuals are not mentioned as parties to the proceedings; and (iii) in the context of the complaint concerning the crime of disobedience, there is no information in the complaint to suggest that any coercion, threats or other crimes related to the trade union status of the individuals mentioned took place.
2. 389. In its communications of 26 April 2019, 4 September 2019, 17 February 2020 and 15 April 2021, the Government reports on the status of Reinstatement Process No. 01173-2017-10024 concerning the unjustified dismissal of Mr Héctor Eduardo Jiménez Alvarado in Collective Dispute No. 011173-2016-00877, stating the following: (i) on 4 September 2017, the Sixth Labour and Social Security Court issued a decision ordering the reinstatement of Mr Jiménez Alvarado, the payment of outstanding wages and the payment of a fine by Enterprise 2; (ii) further to several decisions, in view of the enterprise’s refusal to reinstate Mr Jiménez Alvarado, on 14 March 2018 the court issued a further decision by which it ordered that the proceedings against whoever was legally responsible should be referred to a criminal court for appropriate action; (iii) on 28 September 2018, the court ruled that the reinstatement of the plaintiff was deemed to have been implemented, by virtue of a brief presented by the defendant confirming that the reinstatement had taken place, and gave the defendant ten days to provide proof of the payment of outstanding wages.
3. 390. With regard to the above-mentioned criminal proceedings concerning the refusal by Enterprise 2 to reinstate Mr Jiménez Alvarado, the Government states that, on 8 February 2019, the Sixth Labour and Social Security Court again referred the matter to a criminal court for appropriate action for the crime of disobedience, owing to the failure by Enterprise 2 to report that the outstanding wages had been paid; this referral was made on 16 May 2019 to the Centre for Auxiliary Services of the Criminal Justice Administration and then to the First Collegial Justice of the Peace Court, under Case No. 01186-2019-02135. The Government states in this regard that the Public Prosecutor's Office carried out investigative measures, which included taking a witness statement on 22 October 2019 from Mr Jiménez Alvarado, who stated that he had been reinstated to his post and had withdrawn from the labour proceedings that had been initiated. Lastly, the Government states that the Public Prosecutor's Office filed the charges with the supervisory judge and that a hearing for minor offences was scheduled for 1 September 2022.
4. 391. In view of the above, the Government points out, in its communication of 4 September 2019, that the reinstatement process has been a concern of the State, given the commitments undertaken with a view to complying with the 2013 road map and in particular Indicator No. 5 relating to the significant increase in the percentage of reinstatement orders actually implemented for workers who are victims of anti-union dismissals.
5. 392. In its communications of 1 February and 4 September 2019, 17 February 2020 and 1 February 2022, the Government provides information on the allegations concerning the crime of misappropriation and improper withholding of the social security contributions that were not paid to the IGSS, with the Fourth Court of the First Instance for Criminal Matters, Drug Trafficking and Crimes against the Environment of Guatemala supervising the investigation, under Case No. 01069-2017-00417. In its latest communication in this regard, the Government states that: (i) the Public Prosecutor's Office carried out the corresponding investigation, referring the case for an analytical, technical and multidisciplinary review by the Financial Analysis Department of the Directorate of Criminal Analysis with a request for the jurisdictional supervisory body to issue the corresponding decision on the proceedings; and (ii) that it will inform the Committee of the outcome of the proceedings.
6. 393. Lastly, in its communication dated 29 September 2022, the Government transmits information from the General Labour Inspectorate stating that: (i) a negotiating table was opened with the urban transport consortium, which was convened on eight occasions in January, February, March and June 2017; and (ii) the table was closed at that time by the Deputy Inspector General of Labour, without the latter specifying who had requested the closure, although the representatives of the trade union and employer parties were present.

C. The Committee’s conclusions

1. 394. The Committee notes that the present case concerns allegations of retaliatory measures by two enterprises in the transport sector against members and officials of the trade unions of those enterprises, after collective agreements on working conditions were signed and following complaints against the enterprises to the General Labour Inspectorate. The allegations relate in particular to acts of coercion against workers so that they withdraw their trade union membership and to anti-union dismissals, and, with regard to the latter, to non-compliance with the relevant court decisions. The Committee notes that, for its part, the Government refers to the absence of any complaint concerning the alleged acts of coercion and it also provides detailed information on the judicial proceedings under way in connection with the dismissal of a worker from Enterprise 2.
2. 395. With regard to the allegations that workers are being coerced to withdraw their trade union membership, the Committee takes note of the complainant organization's allegations that the collective agreement on working conditions between Enterprise 1 and SINTRAEXCORMISA of 10 May 2017 and the collective agreement between Enterprise 2 and SITRAERUMSA of 26 October 2017 were signed following several sessions in the conciliation tribunals of the labour courts. The Committee notes that the complainant organization alleges that it was after these collective agreements were signed and following the aforementioned complaints to the General Labour Inspectorate that the enterprises embarked on a campaign of retaliation against the executive committees and members of both unions. The Committee notes that the complainant organization alleges in particular that, in March 2018, Enterprise 1 had drafted withdrawal letters in order to force workers to leave the union under the pretext that they would obtain better economic and working conditions. The Committee notes in this regard that the complainant organization provided a copy of a letter from the human resources department of the urban transport consortium addressed to SINTRAEXCORMISA, dated 13 March 2018, informing it of the withdrawals, as well as copies of three letters of withdrawal signed by the workers Mr José Irlando Salazar Hernández, Mr Willford Manolo Ramirez de León and Mr Saúl Humberto Chitiquez Castañeda.
3. 396. The Committee notes that, for its part, the Government states that the three workers concerned did not file a complaint in this respect and specifies that, in other complaints against Enterprise 1, either these persons do not appear as parties to the proceedings, or there is no information to suggest that any coercion, threats or other crimes related to the trade union status of the individuals mentioned had taken place.
4. 397. While taking note of this information, the Committee observes that the number of withdrawals referred to in the present case is not limited to the three workers mentioned by the Government in its observations, but also includes the 21 other persons whose names appear in the above-mentioned letter from the human resources department of the urban transport consortium to SINTRAEXCORMISA. The Committee also notes that the texts of the three withdrawal letters provided by the complainant organization are identical and that reference is made in particular to an “irrevocable withdrawal” from the trade union.
5. 398. In view of the various pieces of information provided by the Government and by the complainant organization and recalling that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1198], the Committee requests the Government to conduct an investigation to clarify the circumstances surrounding and reasons for the 24 withdrawals communicated to SINTRAEXCORMISA. The Committee requests the Government to keep it informed of the outcome of the investigation.
6. 399. With regard to the allegations of anti-union dismissals, the Committee notes that the complainant organization alleges the unjustified dismissals of workers by Enterprises 1 and 2, stating that these enterprises often do not comply with court decisions to reinstate workers and, if they do, they do not assign the workers any work, applying a form of psychological pressure to force them to resign.
7. 400. The Committee notes, however, that the complainant organization's allegations make specific reference only to Héctor Eduardo Jiménez Alvarado, who was dismissed in the context of Collective Dispute No. 011173-2016-00877. For this reason, the Committee will limit its examination of this allegation to the situation of the aforementioned worker.
8. 401. The Committee takes note in this respect of the decision of the Sixth Labour and Social Security Court of 14 March 2018, which was provided by the complainant, and of the information stating that the labour court ordered a criminal investigation into the crime of disobedience to be opened against those responsible for the failure to comply with the court order to reinstate the worker.
9. 402. The Committee notes that the Government states for its part that: (i) on 4 September 2017, the Sixth Labour and Social Security Court issued a decision ordering the reinstatement of Mr Jiménez Alvarado, the payment of outstanding wages and the payment of a fine by Enterprise 2; (ii) following several decisions that remained without effect, on 28 September 2018, the court finally deemed that the reinstatement of Mr Jiménez Alvarado had been implemented, without the issue of the payment of outstanding wages being settled; and (iii) the proceedings concerning the crime of disobedience stemming from the failure by Enterprise 2 to report that the outstanding wages have been paid are still pending, with a hearing for minor offences scheduled for 1 September 2022.
10. 403. The Committee takes note of the information provided on the implementation of the court decisions concerning the situation of Mr Jiménez Alvarado, who obtained, on 4 September 2017, a decision from the Sixth Labour and Social Security Court ordering his reinstatement and the payment of his outstanding wages. The Committee notes that Enterprise 2 put off implementing this decision for a year, despite several rulings issued by the Sixth Court, and for this reason criminal proceedings were initiated against the enterprise. The Committee notes that, although the worker was reinstated, the enterprise did not fulfil the obligation to pay the outstanding wages and a hearing for minor offences is scheduled for 1 September 2022. The Committee requests the Government to provide information on the outcome of the proceedings against Enterprise 2 for the crime of disobedience concerning the payment of Mr Jiménez Alvarado's outstanding wages.
11. 404. With regard to the legal proceedings concerning the complaints lodged by the trade unions against the two enterprises for the alleged appropriation of the social security contributions deducted from workers without these amounts being paid to the IGSS, the Committee notes that the allegations are not related to the exercise of trade union rights and therefore do not fall within its competence.
12. 405. Finally, the Committee notes the information provided by the Government concerning the creation of a forum for dialogue with the urban transport consortium and the indication that it was closed and its activities were discontinued for unknown reasons. The Committee requests the Government to investigate and report the reasons of discontinuation of the activities of the above-mentioned dialogue forum and, if possible, to take the necessary action to resume it.

The Committee’s recommendations

1. 406. 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 conduct an investigation to clarify the circumstances surrounding and reasons for the 24 withdrawals communicated to SINTRAEXCORMISA by Enterprise 1 and requests the Government to keep it informed of the outcome of the investigation.
   • (b) The Committee requests the Government to inform it of the outcome of the proceedings for the offence of disobedience against Enterprise 2 concerning the payment of the outstanding wages of Héctor Eduardo Jiménez Alvarado.
   • (c) The Committee requests the Government to investigate and report the reasons of discontinuation of the activities of the dialogue forum for urban transport and, if possible, take the necessary action to resume it.