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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 27. The Committee last examined this case, concerning allegations of
inadequate judicial protection against acts of anti-union discrimination in the public
and private sectors, at its meeting in June 2017 [see 382nd Report, paras 355–379]. On
that occasion, the Committee: (i) requested the Government to keep it informed of the
outcome of the appeal lodged to obtain the dismissal of Mr Delgado López; (ii) requested
the Government to keep it informed of the outcome of the examination of three complaints
filed in 2015 against the leaders of the Union of Organized Workers of the National
Office of the Attorney-General (STOPGN) and the Guatemalan Union, Indigenous and Peasant
Movement (MSICG), and requested the complainant organization to provide further details
regarding an alleged criminal complaint filed in 2012 against STOPGN, and invited the
Government to take all measures within its reach in order to encourage the Office of the
Attorney General (PGN) and STOPGN to foster a climate of dialogue and mutual respect;
(iii) requested the Government to inform it promptly of the outcome of the legal
proceedings brought by Messrs Fermín Iván Ortiz Maquin and Isidro Sosa de León against
their dismissals and, in the event that such judicial proceedings were still pending,
trusted that the competent courts would rule promptly and that their decisions would be
swiftly enforced; (iv) requested the Government to report on the grounds for the
second-instance decisions by which 21 reinstatement orders in favour of workers
affiliated with the trade union SITRASOLEDAD were upheld and 16 others were overturned;
(v) invited the Government to report on the actions taken by the Public Prosecutor’s
Office regarding the offence of failure to comply with court orders allegedly committed
by the company, and to ensure that all workers affiliated with SITRASOLEDAD subject to a
judicial reinstatement order who wished to return to their posts could do so without
delay; and (vi) urged the Government, in consultation with the social partners, to
undertake a thorough review of the relevant procedural labour standards so that the
judicial system provides adequate and effective protection in cases of anti-union
discrimination.
- 28. The Committee takes note of the additional information submitted by
the complainant organization through communications dated 1 June 2017 and 18 January
2018, and of the Government’s responses submitted through communications dated 23 March
2018, 6 May and 31 July 2019, 21 April, 30 August and 12 September 2023, and 8 January
and 3 September 2024.
- Committee’s recommendation relating to STIGSS
- 29. Through a communication dated 3 September 2024, the Government
reports that the lawsuit filed by the Guatemalan Social Security Institute to obtain the
dismissal of Mr Delgado López, leader of the Workers’ Union of the Guatemalan Social
Security Institute (STIGSS), was rejected, and that decision became final, meaning his
dismissal was not carried out. The Committee duly takes note of this information and, in
light thereof, will not pursue its examination of this allegation.
- Committee’s recommendation relating to STOPGN
- 30. Through a communication dated 21 April 2023, the Government reports
that: (i) the criminal complaints filed by the former head of the labour division of the
PGN against Messrs William Raul Sandoval Contreras and Alberto Eliú Zelón Gómez and
against the Executive Committee of the STOPGN and the MSICG were dismissed; and ii) the
complaint brought before the Ethics Tribunal of the Bar Association of Guatemala against
Ms Lesbia Guadalupe Amézquita was also dismissed. The Committee duly takes note of this
information. The Committee had also asked the Government to provide information on
specific measures taken to encourage the PGN and the STOPGN to foster a climate of
dialogue and mutual respect. Noting that, according to publicly available information,
the PGN and STOPGN remain bound by a collective agreement and that no information has
been received from the complainant organization regarding the situation of STOPGN since
2015, the Committee, while trusting that the Government will bear its previous
recommendation fully in mind, will not pursue its examination of the present
allegation.
- Committee’s recommendation relating to STIDPP
- 31. With regard to the legal proceedings brought by Messrs Isidro Sosa de
León and Fermín Iván Ortiz Maquin, leaders of the Workers’ Union of the Institute of
Public Criminal Defence (STIDPP), against their dismissals, through communications dated
23 March 2018, 6 May 2019 and 8 January 2024, the Government states that: (i) in
compliance with the ruling of the Constitutional Court, the Institute of Public Criminal
Defence reinstated Mr Isidro Sosa de León, whereas in the case of Mr Fermín Iván Ortiz
Maquin, the Constitutional Court declared his reinstatement request inadmissible due to
a lack of reasoning in the constitutional amparo judgments that had initially granted
his request; and (ii) Mr Ortiz Maquin subsequently obtained a favourable ruling through
ordinary labour proceedings. In light of these elements, the Committee will not pursue
its examination of this allegation.
- Committee’s recommendations relating to SITRASOLEDAD
- 32. Through communications dated 1 June 2017 and 18 January 2018, and
with regard to the allegations of anti-union dismissals and failure to comply with
reinstatement orders affecting numerous members of the Workers’ Union of Compañía
Agrícola la Soledad Sociedad Anónima (SITRASOLEDAD), the complainant organization states
that: (i) the reinstatement orders issued by the first-instance judge in September 2010
have still not been effectively enforced; (ii) faced with the refusal of the judicial
authorities to order the reinstatement of the workers and to enforce payment of the
severance benefits arising from the dismissals, they filed a criminal complaint against
the judge responsible for enforcement, which could only be lodged through the presence
and intervention of the Human Rights Ombudsperson; (iii) despite the fact that in August
2015 the judge certified the company’s non-compliance, it has still not been brought to
trial; (iv) while the reinstatement orders remain unenforced and payment of the benefits
withheld as a result of the dismissals has not been made, the workers and their families
have been deprived of access to social security services, including healthcare, a
situation that has led to the deaths of Messrs Héctor Antonio Bizarro Comatzin, Héctor
Manuel Ixen and Hugo Leonel Arreaga.
- 33. With regard to the Committee’s request for information on the grounds
for the second-instance decisions that overturned 16 reinstatement rulings in favour of
trade union members of SITRASOLEDAD while upholding 21 others, the Government: (i) in
its communication of 31 July 2019, indicates that in 10 cases the reinstatement ruling
was overturned because the workers concerned had collected their severance benefits,
thereby accepting the termination of their employment relationship, and in 4 other cases
it had not been established that the claimant had been employed by the entity; and (ii)
in its communication of 12 September 2023, refers to the remaining two second-instance
judgments that overturned initial reinstatement rulings, although the information
provided does not reveal the grounds for the reversal.
- 34. With regard to the allegations of failure to comply with the
reinstatement orders affecting numerous members of SITRASOLEDAD, and to the request for
information on the actions taken by the Public Prosecutor’s Office in relation to the
offence of non-compliance with these court orders, the Government, through a
communication dated 30 August 2023, reports that one of the criminal proceedings has
been dismissed due to the death of the accused (MP001-2016-38798) and another is still
pending (MP001-2015-85631).
- 35. The Committee also observes that: (i) through a public communication
dated 24 September 2021, five United Nations Special Rapporteurs jointly addressed the
Government of Guatemala regarding the situation of SITRASOLEDAD members dismissed in
2010 and their families, expressing their “serious concern at the inexplicable delay in
guaranteeing due process, access to justice and judicial redress that could be
considered timely and adequate”, requesting information from the Government regarding
the allegations in the case and urging it to take all necessary measures to protect the
rights and freedoms of the persons mentioned; and (ii) through a communication dated 19
November 2021, the Presidential Commission for Peace and Human Rights (COPADEH) of
Guatemala provided its response, briefly referring to some of the judicial proceedings
related to the present case and indicating that the matter is being examined by the
Committee on Freedom of Association.
- 36. The Committee duly takes note of the various elements set out above.
The Committee observes with deep concern that, 16 years after the dismissals in
question, it has not been informed of the effective reinstatement of any of the 21
workers who obtained reinstatement rulings confirmed on appeal, and that criminal
proceedings for non-compliance with court orders allegedly committed by the company are
still pending.
- 37. The Committee recalls that the Government must ensure an adequate and
efficient system of protection against acts of anti-union discrimination, which should
include sufficiently dissuasive sanctions and rapid remedies, with emphasis on
reinstatement as an effective corrective measure [Compilation of decisions of the
Committee on Freedom of Association, sixth edition, 2018, para. 1165]. The Committee
therefore urges the Government to take without delay the necessary measures to ensure
that all members of SITRASOLEDAD who obtained a final reinstatement ruling are fully
compensated for all damages caused by their dismissal, and that the competent
authorities take the necessary steps to resolve the ongoing criminal proceedings as
swiftly as possible. The Committee requests the Government to provide detailed
information in this regard.
- Recommendation relating to the revision of procedural labour standards
- 38. With regard to the Committee’s request that, in consultation with the
social partners, a thorough review of procedural labour standards be undertaken so that
the judicial system provides adequate and effective protection in cases of anti-union
discrimination, the Government, in its various communications, reports that: (i) Bill
No. 5809, which proposes a new Code of Labour and Social Security Procedure, was
referred to the Commission on Justice Sector and Labour Reforms, where it received an
unfavourable opinion, with the opinion of the Labour Commission still pending; and that
(ii) since 2023, a Multi-Member Court of Criminal Magistrates has been operating to
handle the offence of non-compliance with rulings on labour and social security matters,
with the aim of expediting compliance with reinstatement orders.
- 39. The Committee takes note of this information and reiterates, in light
of the facts of the present case, the need to revise procedural labour standards to
ensure effective protection against anti-union discrimination. Noting that this matter
is being monitored by the Committee of Experts on the Application of Conventions and
Recommendations (CEACR) in the context of supervising the application of the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee refers this
legislative aspect of the case to the CEACR and will not pursue its examination.
