Rapport intérimaire - Rapport No. 377, Mars 2016

Cas no 3094 (Guatemala) - Date de la plainte: 14-JUIL.-14 - Clos

Allegations: The complainant organizations allege that the Institute of Municipal Development and the Ministry of Labour and Social Security refuse to recognize the validity of the collective agreement signed by the Institute of Municipal Development, thereby refusing to acknowledge the right to collective bargaining of the workers of the aforementioned institution

1. 329. The complaint is contained in communications dated 14 July 2014, 12 November 2014, 4 May 2015 and 28 of January 2016 jointly presented by the Federation of Bank, Service and State Employees of Guatemala (FESEBS) and the Trade Union of Workers of the Institute of Municipal Development (SITRAINFOM).
2. 330. The Government sent its observations in a communication dated 5 August 2015.
3. 331. 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 complainants’ allegations

1. 332. In their communication of 14 July 2014, the complainant organizations report that the Institute of Municipal Development (INFOM) and the Ministry of Labour and Social Security refuse to recognize the validity of the collective agreement signed by INFOM and SITRAINFOM, thereby refusing to recognize the right to collective bargaining of the workers of the aforementioned institution.
2. 333. In this regard, the complainant organizations indicate that: (i) between 2008 and 2012, SITRAINFOM and INFOM were engaged in a socio-economic collective dispute in relation to the negotiation of INFOM’s seventh collective agreement on working conditions, before the First Labour and Social Security Court; (ii) in October 2012, both parties signed an agreement undertaking to appoint their respective bargaining committees for the collective agreement on working conditions and to negotiate the agreement through direct bargaining, whereby the trade union withdrew from the conciliation proceedings before the First Labour and Social Security Court; (iii) on 13 June 2013, the President of the Republic appointed the new Director of INFOM, Mr German Estuardo Velásquez Pérez; (iv) on 13 September 2013, the Director of INFOM and the representatives of the trade union signed an agreement in which the parties undertook to establish their respective bargaining committees with a view to continuing with the bargaining process and signing the seventh collective agreement on working conditions no later than 20 October 2013; (v) on 19 September 2013, in an official act, the Director appointed the new INFOM bargaining committee; (vi) on 20 October 2013, five years after the beginning of the bargaining process, the duly accredited representatives of INFOM and SITRAINFOM publicly signed INFOM’s seventh collective agreement on working conditions; (vii) in December 2013, claiming technical difficulties related to the end of the financial year, the Director, who was aware that the agreement was valid and enforceable, proposed an addendum to the agreement whereby the obligations undertaken therein would become effective as of January 2014; (viii) on 16 December 2013, both parties signed the aforementioned addendum; (ix) in January 2014, the INFOM executive committee refused to recognize the signed agreement claiming that, despite having authorized the Director to negotiate the new agreement with the trade union under Decision No. 255-2012, it had no knowledge of the negotiation and that the Director was not authorized to conduct it; (x) on this basis, the INFOM executive committee ordered the Director to renegotiate the previously signed agreement; (xi) on 13 March 2014, in accordance with the regulations in force, SITRAINFOM presented the collective agreement to the Ministry of Labour and Social Security for its registration; (xii) on 18 March 2014, under Decision No. 87-2014, the Ministry of Labour approved the registration of the agreement, the clauses of which came into force on 20 October 2013; (xiii) INFOM filed an appeal for the reversal of Decision No. 87-2014, requesting the removal of the agreement from the public register; and (xiv) in violation of article 275 of the Labour Code, which provides that appeals for reversal are to be rejected in the absence of a decision by the Ministry of Labour within a maximum period of eight days, on 6 May 2014 the Ministry of Labour issued Decision No. 141-2014, upholding the appeal for reversal filed by INFOM, thereby revoking Decision No. 87-2014 and removing the collective agreement from the public register.
3. 334. As regards the above, the complainant organizations allege that the removal of the collective agreement from the public register does not comply with the grounds provided by the current regulations on registration, and that the delay by the Ministry of Labour in issuing Decision No. 141-2014 points to influence-peddling in taking the decision. In the light of the above, the complainant organizations request that the collective agreement signed on 20 October 2013 be recognized as valid.
4. 335. In its communication of 12 November 2014, the complainant organizations allege that the INFOM management has been exerting pressure on SITRAINFOM and its members to make them renounce once and for all the contents of the collective agreement signed in October 2013. In this regard, the complainant organizations indicate that: (i) on 28 July 2014, the INFOM management launched a campaign against the agreement and unilaterally offered all workers supposed economic benefits, replacing those already negotiated under the agreement; (ii) as of 13 August 2014, various communications appeared, both on social networks and in the company’s premises, signed by a group of "proactive colleagues", containing anonymous accusations against the representatives of the trade union and calling for a general assembly at which SITRAINFOM should abandon its claims for the application of the agreement; (iii) no reply was made to the requests made by representatives of SITRAINFOM for INFOM to conduct inquiries to identify those responsible for the anonymous attacks and to install security cameras in the institute; and (iv) when INFOM made no reply, the trade union representatives filed a complaint before the Public Prosecutor’s Office on 28 August 2014, claiming harassment, coercion, threats and trade union repression. The complainant organizations consider that, being in violation of ILO Conventions Nos 98 and 154, which have been ratified by Guatemala, the reported acts constitute anti-union discrimination and are evidence of the barriers to the right to collective bargaining in INFOM.
5. 336. In its communication of 4 May 2015, the complainant organizations add that, on 24 October 2014, SINTRAINFOM submitted an appeal to the Ministry of Labour and Social Security for the reconsideration of Decision No. 141-2014, which removed INFOM’s seventh collective agreement from the public register, but that the authorities have not yet made any reply.
6. 337. In an additional communication of 28 January 2016, the complainant organizations state that, as of July 2015, with the support of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, the negotiating committees of the SINTRAINFOM and INFOM have taken additional steps to achieve a final agreement on the content and modalities of the entry into force of the seventh collective agreement on working conditions but that, over this period of time, the board of the institution has continued to violate the right to collective bargaining. The complainant organizations specifically allege that, despite having approved a modified version of the Agreement on 14 September 2015, the board of INFOM has been using time delaying tactics to refuse to give effect to the Agreement, ignoring the requests made by the Committee for the Settlement of Disputes before the ILO and by the Ministry of Labour and Social Welfare.

B. The Government’s reply

1. 338. In its communication of 5 August 2015, the Government refers to the annulment by the Ministry of Labour and Social Security of the registration of the seventh collective agreement on working conditions signed by SITRAINFOM and INFOM. In this regard, the Government indicates that the technical complexity of the case is the reason why the Ministry of Labour took several weeks to issue a decision on the appeal for reversal filed by INFOM against the registration of the agreement. The Government adds that the agreement’s registration was annulled on the grounds that, although the agreement had been signed by the bargaining committees of the trade union and INFOM, it had not been approved by the executive committee of that autonomous public institution, contrary to the provisions of the second clause of Decision No. 1 of 24 September 2013 and the third clause of Decision No. 10 of 18 October 2013, signed by both bargaining committees. The Government indicates that both decisions clearly specify that the process of collective bargaining ends once the agreement reached by the bargaining committees has been approved by the INFOM executive committee, as the highest body of that institution. The Government indicates that, in a resolution of 20 February 2014, based on an opinion by the institution’s financial department, the INFOM executive committee requested the Director to appoint a new bargaining committee with a mandate to ensure that the contents of the collective agreement were compatible with the institution’s financial sustainability. The Government indicates lastly that: (i) the initial registration of the agreement by the Ministry of Labour and Social Security (which was subsequently annulled) was due to the trade union’s failure to present documents setting out the process for the approval of the agreement reached by the parties and the failure to include in the application for registration the addendums to the agreement signed after its adoption; (ii) once the decisions relating to the procedure for approval of the agreement were communicated, the Ministry was able to ascertain that the bargaining process had not culminated in the approval of the agreement by the competent INFOM authority; (iii) the appeal for reconsideration submitted by the trade union was addressed in a decision by the Ministry of Labour, dated 19 November 2014, indicating that Guatemalan legislation only recognizes administrative appeals for revocation or reversal, but not for reconsideration; (iv) the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining has submitted this case to mediation, whereby a first meeting was held between the parties on 9 July 2015; (v) as a result of that meeting, the INFOM executive committee made a financial proposal seeking to ensure the viability of the institution’s seventh collective agreement on working conditions, and is awaiting a reply from the trade union; and (vi) in view of the complaint brought by SITRAINFOM before the Office of the Human Rights Ombudsman on 4 August 2014, the Ministry of Labour and Social Security issued a detailed report within the stipulated timeframe regarding the negotiation of INFOM’s seventh collective agreement on working conditions.

C. The Committee’s conclusions

1. 339. The Committee observes that this case refers to the negotiation and signature of a collective agreement on working conditions at the Institute of Municipal Development (INFOM), an autonomous public institution; the annulment of its registration by the Ministry of Labour and Social Security; and to allegations of pressure on the representatives of SITRAINFOM to accept the renegotiation of the agreement.
2. 340. The Committee observes that the information provided by both the complainant organizations and the Government indicate that: (i) in 2012, after several years of a dispute in relation to the negotiation of INFOM’s seventh collective agreement on working conditions, the parties decided to withdraw from the proceedings before the courts and return to direct bargaining; (ii) to that end, each party appointed its own bargaining committee and, on 20 October 2013, they signed INFOM’s seventh collective agreement on working conditions; (iii) in December 2013, the bargaining committees signed an addendum to the agreement concerning the date of its actual entry into force; (iv) on 13 March 2014, the trade union submitted the collective agreement to the Ministry of Labour and Social Security for its registration; (v) on 18 March 2014, the Ministry of Labour and Social Security issued a decision registering the agreement, which was appealed by the INFOM executive committee; (vi) on 6 May 2014, the Ministry of Labour and Social Security upheld the appeal filed by INFOM and annulled the registration of the collective agreement; (vii) the appeal for reconsideration filed by SITRAINFOM was declared inadmissible; and (viii) there is no mention of a possible challenge to the aforementioned decisions of the Ministry of Labour and Social Security in the courts.
3. 341. Furthermore, the Committee notes that the complainant organizations allege that: (i) the negotiation and signature of the collective agreement fully met the legal requirements, as attested by its initial registration by the Ministry of Labour and Social Security; (ii) the signature, in December 2013, of an addendum to the agreement in relation to the date of actual entry into force indicates that both parties to the negotiation clearly accepted the full validity of the agreement; and (iii) the delay by the Ministry of Labour and Social Security in issuing a decision regarding the appeal for reversal filed by INFOM (a month and a half instead of the eight working days provided under article 275 of the Labour Code) proves that the decision by the Ministry to revoke the registration of the agreement is the result of influence-peddling and is not in conformity with the law.
4. 342. The Committee notes that the Government indicates that: (i) in its application for registration, the trade union did not attach the documents relating to the process for approval of the agreement established by the parties indicating that once the agreement was signed by the bargaining committees, it would only enter into force after it was approved by the institution’s executive committee; (ii) under a resolution of 20 February 2014, on the basis of an opinion by the institution’s financial department, the INFOM executive committee requested the institution’s Director to appoint a new bargaining committee with a mandate to ensure that the contents of the collective agreement were in line with the institution’s financial sustainability; and (iii) the Ministry was therefore able to ascertain that the bargaining process had not culminated in the approval of the agreement by the INFOM executive committee, the competent authority in that regard.
5. 343. In view of the above, the Committee in particular observes that: (i) the agreements signed by the bargaining committees and the decisions issued by INFOM, adopted as of 2012 to resume and advance direct bargaining on the seventh collective agreement on working conditions, indicate that the agreements signed by the INFOM bargaining committee must be approved by the institution’s executive committee (ad referendum bargaining), and (ii) the practice of reaching collective agreements “ad referendum”, making a definitive agreement dependent on subsequent approval by the highest body of the bargaining party, is reflected in Guatemalan law, namely in certain provisions of the Labour Code. However, the Committee also observes that: (i) the text of the collective agreement on working conditions, signed on 20 October 2013, does not expressly indicate that its definitive adoption is dependent on its approval by the INFOM executive committee; (ii) the signature, in December 2013, of an addendum to the collective agreement regarding the date of its actual entry into force, is indicative of the definitive, rather than “ad referendum”, nature that the bargaining committees assigned to the agreement that they signed in October 2013, and (iii) the INFOM executive committee took several months to issue a statement regarding the contents of the agreement signed by its bargaining committee, and finally to opt for the renegotiation of the agreement.
6. 344. In the light of the above, the Committee observes firstly that there is a dispute regarding the validity of the collective agreement signed on 20 October 2013, which revolves around the question of whether the approval of the agreement by the INFOM executive committee was necessary for its entry into force. In that regard, the Committee observes that the Ministry of Labour and Social Security first decided to register the agreement, before finally revoking that decision. The Committee also observes that the dispute has not yet been the subject of judicial proceedings but has been submitted to mediation before the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. In this respect, the Committee takes note of the additional information submitted by the complainant organizations through a communication dated 28 January 2016, denouncing that the board of INFOM is not complying with the agreements reached before the Committee for the Settlement of Disputes. The Committee therefore requests the Government to send, without delay, its observations in this respect, and to keep it informed of the outcome obtained by the Committee for the Settlement of Disputes .with respect to this conflict. 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, especially in so far as INFOM is a public institution and the Ministry is therefore not independent from the parties.
7. 345. Secondly, the Committee wishes to underscore that, while it is fully legitimate for the negotiation and signature of a collective agreement in an autonomous public institution to require a prior financial opinion and the approval of the agreement by the institution’s competent authorities, it should also be noted that the process of collective bargaining should be clear and enable bargaining in good faith between the parties. In this regard, the Committee recalls 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 decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 940]. Furthermore, the Committee draws the Government’s attention to Paragraph 6 of the Collective Bargaining Recommendation, 1981 (No. 163), according to which parties to collective bargaining should provide their respective negotiators with the necessary mandate to conduct and conclude negotiations, subject to any provisions for consultations within their respective organizations. On the basis of these principles, and with a view to promoting collective bargaining in good faith and the harmonious development of labour relations in the public sector, the Committee considers that there must be clarity at the outset on the articulation of the distinct stages of collective bargaining and that the studies on the verification of the financial viability of the contents of negotiations should precede the conclusion of the collective agreement. In so far as it understands that the use of “ad referendum” bargaining is not an isolated practice in the public sector, the Committee requests the Government, in consultation with the trade unions concerned, to take the measures required 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. Recalling that it can avail itself of the technical assistance of the International Labour Office, the Committee requests the Government to keep it informed in that regard.
8. 346. As regards the allegations by the complainant organizations regarding pressure and acts of anti-union discrimination against the representatives of SITRAINFOM to make them accept the renegotiation of the collective agreement, the Committee notes that the Government indicates that in relation to the complaint brought by SITRAINFOM before the Office of the Human Rights Ombudsman on 4 August 2014, the Ministry of Labour and Social Security issued a detailed report within the stipulated timeframe. The Committee observes, however, that the Government does not provide information regarding the complaint brought by SITRAINFOM before the Public Prosecutor’s Office on 28 August 2014 for harassment, coercion, threats and trade union repression. 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 requests the Government to take the necessary measures to ensure that the complaint filed by SITRAINFOM gives rise to all the necessary inquiries as soon as possible and to keep it informed of their outcomes.

The Committee’s recommendations

1. 347. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (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.