Definitive Report - REPORT_NO393, March 2021

CASE_NUMBER 3089 (Guatemala) - COMPLAINT_DATE: 24-MAI-14 - Closed

Allegations: The complainant organization alleges that a number of provisions of the Criminal Code and the Labour Code impede the free exercise of freedom of association; that it has not been allowed to be part of the delegation of Guatemala to the International Labour Conference; and that officials and members of a trade union of municipal workers were victims of anti-union dismissal

1. 455. The Committee examined Case No. 2967 at its meeting in June 2014, when it presented an interim report to the Governing Body [see 372nd Report, paras 297–307, approved by the Governing Body at its 321st Session (June 2014)]. The complaint in Case No. 3089 is contained in a communication from the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) dated 24 May 2014. As the complainant organization is the same and as both complaints primarily concern legislative matters, the Committee decided to examine Cases Nos 2967 and 3089 together.
2. 456. The Government sent its observations in communications of 13 August, September and 25 November 2014; 2 May, 22 July, 13 August and 16 December 2019; 31 January, 2 and 10 September 2020 and 25 January 2021.
3. 457. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of Case No. 2967

1. 458. At its June 2014 meeting, the Committee made the following recommendations in relation to Case No. 2967 [see 372nd Report, para. 307]:

B. The complainant’s allegations (Case No. 3089)

1. 459. In its communication of 24 May 2014, the complainant organization denounces the ineffectiveness of the legislative and judicial protection provided to trade union officials in respect of anti-union discrimination. The complainant organization states that, although the Political Constitution and the Labour Code provide protection against anti-union dismissal in the form of reinstatement to workers who: (i) are involved in a socio-economic collective dispute (section 380 of the Labour Code); (ii) have participated or are participating in the establishment of a trade union (section 209 of the Labour Code); or (iii) are members of the executive committee (section 223(d) of the Labour Code), these workers are deprived, because of legislative and judicial shortcomings, of a means of prompt and effective protection.
2. 460. The complainant organization alleges in particular that: (i) although the Labour Code provides that orders for the reinstatement of workers who are victims of anti-union dismissal must be issued and applied within 24 hours of the complaint being submitted to the court, the Code omits any express regulation on how the process of reinstatement should take place; and (ii) in view of this omission, the labour courts, under section 96 of the Code of Civil and Commercial Procedure, consider applications for reinstatement in ordinary proceedings. The complainant organization further denounces the fact that the labour courts require that all remedies, exceptions and questions of procedure must be exhausted in order to issue a reinstatement order, which causes excessive delays. The complainant organization states that a reinstatement procedure for a trade union official can involve up to three hearings and that a reinstatement order can be issued only after the decision is final, in other words, after it has been upheld by the Court of Appeal, which, in practice, can take more than ten years. Under these circumstances, the complainant organization claims that the Government of Guatemala, by failing to provide effective protection to the trade union leaders responsible for representing and liaising on behalf of the unions, is not guaranteeing adequate protection against anti-union dismissal.

C. The Government’s reply

Case No. 2967: Legislative aspects

1. 461. In a communication of 2 May 2019, the Government provides its observations in respect of the legislative provisions which, according to the complainant organization, raise issues of compatibility with freedom of association (sections 256, 292, 294, 390 and 414 of the Criminal Code; and sections 220(c), 223(d) and 226 of the Labour Code). The Government indicates that, in accordance with the tripartite agreement signed at the ILO in November 2017 and with a view to implementing the 2013 road map adopted in the context of the complaint submitted in 2012 under article 26 of the ILO Constitution concerning the non-observance by Guatemala of Convention No. 87, meetings and workshops have been held in the framework of the National Tripartite Committee on Labour Relations and Freedom of Association. The Government reports that the National Tripartite Committee considered Bill No. 5199 of the Congress of the Republic, on approving amendments to Decree No. 1441 of the Congress of the Republic (Labour Code), Decree No. 71–86 of the Congress of the Republic (Act on Unionization and Regulation of Strike Action by State Employees), and Decree No. 17–73 of the Congress of the Republic (Criminal Code). The Government also reports that, within the framework of that tripartite body, a consensus was reached on certain fundamental matters, such as the definition of essential services and the amendment of sections 390 and 430 of the Criminal Code. The Government refers in particular to section 390 of the Criminal Code concerning rebellion or sedition, which was amended by tripartite agreement so as to exclude from its scope lawful strikes carried out in accordance with the legislation in force. It further states that the National Tripartite Committee sent a letter to the Congress of the Republic on 7 May 2018, informing it of the legislative matters on which a tripartite consensus had been reached and those still pending, and requesting the legislative body to defer its discussion of Bill No. 5199 until a tripartite consensus is reached on the issues pending in the National Tripartite Committee.
2. 462. In a communication of 10 September 2020, the Government refers to the follow-up given to the ILO Governing Body decision of November 2018 contained in document GB.334/INS/9, which declared closed the above-mentioned procedure initiated under article 26 of the ILO Constitution. The Government emphasizes that, after having recognized the progress achieved by the country, the Governing Body: (i) highlighted the importance of elaborating and adopting legislative reforms that fully comply with point 5 of the road map (according to which the Government must take urgent action, in consultation with the tripartite constituents, to propose amendments to the Labour Code and the other relevant laws, incorporating the amendments which have long been proposed by the ILO supervisory bodies); and (ii) requested the Office to implement without delay a robust and comprehensive technical assistance programme to ensure the sustainability of the current social dialogue process as well as further progress in the implementation of the road map.
3. 463. The Government states that, in June 2020, in accordance with the above-mentioned decision of the Governing Body, the tripartite constituents approved a technical cooperation project on “Strengthening the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”, prepared by the Office. The Government highlights that one of the key aspects of this project is support for bringing legislation into conformity with the ILO Conventions on freedom of association through the work of the National Tripartite Committee. Lastly, the Government indicates that, on 6 August 2020, the National Tripartite Committee approved its work plan for the period from May 2020 to May 2021, an objective of which is to reach agreement on legislative reforms involving the proposal of amendments to the Labour Code and other relevant laws, incorporating the amendments proposed by the ILO supervisory bodies.

Case No. 2967: Other allegations

1. 464. By communication of 12 August 2019, the Government transmits its observations concerning the alleged anti-union dismissal of 17 leaders and members of the Trade Union of Workers of the Municipality of San Carlos in the Department of Retalhuleu on 14 May 2012. In this regard, the Government reports that:
   • the worker Vilma Lucrecia Flores Rodas, having reached an out-of-court settlement with the defendant, withdrew the claim she had filed against the Municipality;
   • the workers Marina Emérita Escobar Estacuy, Sofía Floridalma Lorenzo Martínez de Agustín, Alejandra Castillo Luis, Ingrid Nineth Valiente Navas de Torres, Norma Leticia Tem Alvarado, Pilar Cayax López, Orlando Abigail Cifuentes Sánchez and Carlos Roberto Barrios Chávez, having also reached an out-of-court settlement with the defendant, discontinued their respective proceedings;
   • by a decision of 5 May 2015, the worker Ranferi Fuentes Escobar had to drop his case, having failed to remedy several irregularities in his claim; and
   • as for the claim filed by workers Olga Marina de León and Bernabé Rodas Benedicto, although the Municipality was initially exonerated, on 19 January 2017 the court of second instance ordered their immediate reinstatement, which became effective on 15 August 2017. Subsequently, at the request of the Municipality, a conciliation process was carried out between the parties and on 29 September 2017 a payment agreement was reached between the above-mentioned trade unionists and the Municipality.
2. 465. With regard to the allegation concerning the unlawful nomination of employers’ and workers’ representatives to the International Labour Conference, the Government states in its communication of 13 August 2014 that Ministerial Agreement No. 126–2012 was not the subject of any administrative, legal or constitutional challenge and that, moreover, this agreement was repealed in its entirety by Ministerial Agreement No. 181– 2013. With regard to the refusal to accredit the MSICG delegates, the Government states that the Ministry of Labour and Social Welfare recognizes trade union movements but is unable to determine the representative status of those that do not have registers which make it possible to quantify their membership, a requirement that is established in the ILO Constitution, and that no longer applying this objective and verifiable requirement would be acting in a discriminatory way against those entities that had been accredited in accordance with the national law in force.

Case No. 3089

1. 466. In a communication dated 24 May 2014, the Government states that the Guatemalan legal framework protects and guarantees the right to organize and to bargain collectively. It also states, in relation to the allegations of unjustified delays in the labour justice system, that by creating the Centre for Labour Justice in 2011 and reducing the length of ordinary labour proceedings, the judicial backlog was notably reduced in less than a year, with the average processing time dropping from three years to eight months. With regard to the alleged failure of the courts to issue reinstatement orders within 24 hours of the application, the Government states that the employer may, by virtue of its right of defence under article 12 of the Political Constitution, challenge reinstatement decisions through appropriate remedies, which implies that such decisions are not final. Furthermore, the Government regrets that the allegations made by the complainant organization are of a general nature, and that no specific cases are identified. It further states that the issues raised were known to the Committee on Freedom of Association in the context of other cases and that these are also being examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR).
2. 467. In its communications of January and September 2020, the Government refers to the draft Code of Labour and Social Security Procedure prepared by the Supreme Court of Justice with a view to streamlining the functioning of the labour justice system and providing an efficient service to citizens. It states in this regard that: (i) the preliminary draft law prepared by the Court was submitted in December 2018 to the social partners in the framework of a roundtable dialogue with a view to gathering their opinions; (ii) although it was not possible for the workers to participate in the above-mentioned roundtable, the possibility was left open for them to submit their comments on the text; (iii) in the first four months of 2019, a consultant from the Office visited the country and participated, together with representatives of the Government and of employers, in a meeting with judges and consultants from the judicial body in charge of the preliminary draft; (iv) the draft was approved by the plenary of the Supreme Court and has been before the Congress of the Republic since 17 July 2020 as Bill No. 5809; (v) the bill seeks to prevent the application of procedural rules from other branches of law that may not be suited to the specific nature of labour relations; and (vi) the draft establishes specific rules and time limits for cases concerning the reinstatement of union officials and workers who establish a union. In a communication of 25 January 2021, the Government once again recalls that the 2020-2021 work plan of the National Tripartite Commission on Labour Relations and Freedom of Association in Guatemala includes the proposal for legislative amendments incorporating the recommendations of the ILO supervisory bodies. In this context, the Government refers to the activities of the Subcommittee on Labour Legislation and Policy.

D. The Committee’s conclusions

The Committee’s recommendations

Case No. 2967: Legislative aspects

Case No. 3089

Case No. 2967: Other allegations

1. 477. In the light of its foregoing conclusions, which do not call for further examination, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that, with the technical assistance of the Office, reforms to the Labour Code and the Criminal Code will be adopted at the earliest opportunity enabling the full application of the principles of freedom of association. Similarly, the Committee expects that procedural legislation which fully complies with the principles of freedom of association mentioned in the conclusions of the present case will be adopted at the earliest opportunity. The Committee refers these legislative aspects to the Committee of Experts on the Application of Conventions and Recommendations.
   • (b) The Committee requests the Government to ensure that the rights of all workers who may have been victims of anti-union dismissal by the municipality of San Carlos in the department of Retalhuleu have been respected. Noting also the repetitive nature of the cases concerning anti-union dismissals in municipalities, the Committee once again urges the Government to take the necessary measures to address this situation effectively.