Report in which the committee requests to be kept informed of development - Report No 382, June 2017

Case No 2948 (Guatemala) - Complaint date: 09-MAY-12 - Follow-up

Allegations: The complainant alleges numerous dismissals, transfers and acts of anti-union harassment directed against several public-sector workers’ organizations and one private-sector workers’ organization and failure of the labour inspectorate and the labour courts to meet their obligation to provide appropriate protection in these cases

1. 355. The Committee last examined this case at its October 2014 session and, on that occasion, presented an interim report to the Governing Body [see 373rd Report, approved by the Governing Body at its 322nd Session (October 2014), paras 335–359].
2. 356. The complainant sent new allegations in a communication of October 2015.
3. 357. The Government sent observations in communications dated 27 January and 3 and 18 February 2015, 10 June 2016 and 3 May 2017.
4. 358. 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 the case

1. 359. At its October 2014 session, the Committee made the following recommendations [see 373rd Report, para. 359]:
   • (a) The Committee deeply regrets that, despite several requests and urgent appeals, the Government has failed to provide its observations on a substantial part of the allegations in this case.
   • (b) The Committee requests the Government to take the measures necessary to guarantee that the STOPGN may freely exercise its activities in defence of its members’ rights before the institutions responsible for enforcing compliance with labour legislation, and to provide the Committee, as a matter of urgency, with information on the criminal complaint that was allegedly filed against the STOPGN.
   • (c) The Committee requests the complainant to provide further details on the alleged anti-union termination of employment contracts of employees of the Guatemalan Social Security Institute and to send copies of the corresponding judicial rulings.
   • (d) The Committee requests the Government to keep it informed of any new judicial ruling in the proceedings concerning the dismissal of the STIGSS official Miguel Ángel Delgado López and of his current employment situation.
   • (e) The Committee requests the Government to provide it with information on the reasons for the disciplinary sanctions imposed on Ms Chiroy Pumay.
   • (f) Gravely concerned by the murder of the STIDPP Secretary-General, de Jesús de Ramírez – which was examined by the Committee under Case No. 2609, and was considered by the Public Prosecutor’s Office of Guatemala to be an act of anti-union repression – the Committee urges the Government to send, as a matter of urgency, its observations on the allegations in this case concerning the STIDPP; to ensure in any event that the proceedings brought before the labour inspectorate and the courts in relation to the aforementioned facts result in swift decisions which are implemented; and, in general, to immediately take the necessary steps to safeguard the exercise of freedom of association within the Public Criminal Defence Institute.
   • (g) The Committee urges the Government to send, as a matter of urgency, its observations on the allegations concerning the situation of SITRASOLEDAD and its members, and to ensure that all final judicial orders for reinstatement are executed immediately.

B. The complainant’s new allegations

1. 360. In a communication received in October 2015, the complainant reports new anti-union acts directed against the members and officials of the Union of Organized Workers of the Office of the Attorney-General (STOPGN) and the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) as part of a broader attempt by state bodies to criminalize the MSICG. Specifically, the complainant alleges that: (i) on 11 February 2015, three MSICG officials, Ms María de los Ángeles Ruano Almeda, Ms Ingrid Migdalia Ruano and, assisting them, Ms Lesbia Guadalupe Amézquita Garnica filed a criminal complaint against Ms María Luisa Durán, head of the Labour Relations Unit in the Office of the Attorney-General; (ii) the criminal complaint was prompted by Ms Durán’s physical assault on two STOPGN and MSICG members, Ms María Adela Batres Mateo and Ms Margarita Cruz de la Cruz, who are employed by the Office of the Attorney-General’s cleaning service; (iii) the MSICG publicized this complaint; (iv) the public prosecution service hindered the processing and investigation of the complaint and the complainants were not invited to testify until seven months after it had been filed; (v) by contrast, the public prosecution service processed expeditiously the two complaints filed by Ms María Luisa Durán against the MSICG and STOPGN officials in March 2015 in retaliation for the aforementioned criminal complaint by the trade union confederations; (vi) the criminal complaints filed by Ms Durán are based on the two confederations’ legitimate conduct of their trade union activities; (vii) to date, the public prosecution service has not sent copies of the case files corresponding to the complaints to the trade union confederations, thus hindering their exercise of the right of defence; (viii) Ms Durán has also filed a complaint with the Guatemalan Bar Association, requesting that Ms Amézquita Garnica be disbarred in order to prevent her from working on behalf of the MSICG and its affiliates; and (ix) the Ministry of Labour and Social Welfare has employed Ms María Luisa Durán in the past, a fact that sparks fears of future attempts to criminalize the MSICG.

C. The Government’s reply

1. 361. In a communication dated 27 January 2015, the Government sent its observations regarding the allegations of anti-union dismissals and other acts directed against officials of the Union of Workers of the Guatemalan Social Security Institute (STIGSS). With respect to the proceedings concerning the dismissal of union official Miguel Ángel Delgado López and to his employment situation, the Government forwards information provided by the tenth labour and social welfare court to the effect that: (i) in a judgment issued on 22 April 2014, the court denied the request for authorization to dismiss the union official; (ii) the Guatemalan Social Security Institute (IGSS) appealed this judgment before the second chamber of the court of appeals, which has yet to rule on the appeal; and (iii) pending the issuance of this ruling, Mr Delgado López is still employed by the IGSS.
2. 362. With regard to the reasons for the disciplinary sanctions imposed on Ms María Teresa Chiroy Pumay, the Government forwarded information provided by the IGSS to the effect that the three penalties that the administration imposed on her in April 2012 (a one-day and a two day suspension from duty without pay and a warning) were prompted, respectively, by a backlog that inconvenienced those who depended on her work, since her failure to process orders for special tests undermined patient care, and by her failure to correct a form as instructed; that the aforementioned disciplinary proceedings were carried out with full respect for the right to defence and to a hearing, enshrined in the Constitution of the Republic of Guatemala; and that, for all of these reasons, it is clear that the disciplinary sanctions imposed on Ms Chiroy Pumay in no way constituted acts of anti-union harassment.
3. 363. In a communication dated 3 February 2015, the Government sent its observations on the allegations that the STOPGN had been prevented from carrying out trade union activities. According to the Government: (i) the collective agreement on working conditions between the Office of the Attorney-General and the STOPGN is still in force; (ii) monthly meetings between management in the Office of the Attorney-General and STOPGN’s Executive Board and other meetings on urgent matters are being held; and (iii) both the Office of the Attorney-General and the public prosecution service deny all knowledge of the criminal complaint allegedly filed against the STOPGN in 2012 and request that the complaint number be verified so that a full answer can be provided.
4. 364. In a communication dated 10 June 2016, the Government replied to the MSICG’s new allegations concerning the STOPGN and forwarded the information provided by the administrative offences branch of the public prosecution service concerning the complaints filed by Ms María Luisa Durán, who, until 2 March 2015, was head of the Labour Relations Unit in the Office of the Attorney-General. The public prosecution service states that: (i) in Complaint No. MP001-2015-37498, the former employee of the Office of the Attorney-General alleges that STOPGN officials committed various acts of corruption, such as unlawfully negotiating on jobs and promotions, requesting that the employment contracts of people who had failed to meet the union’s demands not be renewed, and inappropriately obtaining and passing on labour-related information that had been provided to the MSICG in order to encourage the filing of unsubstantiated complaints with the ILO as a form of pressure in order to seek advantages for an MSICG affiliate, the STOPGN; (ii) in Complaint No. MP001-2015-37498, the complainant made a witness statement on 11 and 23 May 2015; on 22 May, it was requested that the case be transferred to the public prosecution service for human rights; and a decision on that request is pending; and (iii) Complaint No. MP001-2015-16448, filed against Mr William Raúl Sandoval Contreras and Mr Alberto Eliu Zelon, concerns allegations of psychological violence against women. The Government then forwarded information provided by the Guatemalan Bar Association regarding the complaint against Ms Lesbia Guadalupe Amézquita Garnica, filed by Ms María Luisa Durán on 12 June 2015, to the effect that this case has yet to be resolved. Lastly, according to the Ministry of Labour and Social Welfare, the fact that Ms María Luisa Durán was formerly employed by the Ministry does not violate any rule.
5. 365. In a communication dated 18 February 2015, the Government sent its observations on the allegations concerning the Union of Workers of the Public Criminal Defence Institute (STIDPP). With regard to the alleged anti-union transfer and subsequent dismissal of Ms Amparo Amanda Ruiz, the Government states that: (i) the administrative appeals against the labour inspectorate’s decision (to issue a warning) filed by the Public Criminal Defence Institute (IDPP) were denied; (ii) since Ms Amparo Amanda Ruiz refused to be transferred, the IDPP requested the courts to authorize her dismissal; the request was granted by the lower court and confirmed on appeal and her action of unconstitutionality (amparo) was denied; (iii) thus, Ms Amparo Amanda Ruiz has been a former employee of the IDPP since 23 May 2013. Concerning the alleged anti-union dismissal of Mr Fermín Iván Ortiz Maquin and Mr Isidro Sosa de León, the Government states that: (i) the administrative appeals that the IDPP filed against the labour inspectorate’s decisions regarding the dismissal of these two workers were denied; and (ii) the court’s judgment on the amparo action that the IDPP filed against the labour inspectorate’s decisions is pending.
6. 366. With respect to the alleged workplace harassment of Mr Marvín René Doris Orellana, the Government states that: (i) in April and July 2012, the labour inspectorate warned the IDPP not to retaliate against him; and (ii) he is still employed by the IDPP and no termination proceedings have been brought against him. Lastly, the Government states that on 27 January 2015, the Ministry of Labour and Social Protection invited the Director-General of the IDPP to a meeting. The Ministry expressed regret that the Director-General did not attend but was represented by one of his co-workers. The Ministry took note of the IDPP official’s statements regarding the negotiation of a collective agreement and the establishment of a joint committee in the IDPP.
7. 367. In a communication dated 3 May 2017, the Government sent its observations on the allegations concerning the trade organization SITRASOLEDAD and its members. The Government refers in this respect to the information provided by the judicial body, to the effect that: (i) the first instance labour courts ordered the reinstatement of the 37 worker members of SITRASOLEDAD; (ii) the Labour and Social Welfare Court of Appeal confirmed the reinstatement of 21 workers and revoked the reinstatement of the other 16; (iii) in compliance with the current regulations, a period of five days was granted to the enterprise to comply with the reinstatements orders; (iv) in view of the failure to meet such orders, a fine was imposed to the enterprise, and given that the non-execution of the orders by the enterprise continued, the file was transferred to the Public Prosecutor’s Office (confirmation of the criminal act); (v) from then on, any communications from workers were received indicating if they have been or not reinstated in their workstation and demonstrating their interest in the matter; and (vi) the initiatives taken by the Labour and Social Welfare Court of Appeal to get in contact with the dismissed workers and the company were not effective and the only information came from a company representative indicating that the workers that formed the union had left the country a long time ago.

D. The Committee’s conclusions

1. 368. The Committee recalls that this case concerns allegations of numerous dismissals, transfers and acts of anti-union harassment directed against several public sector workers’ organizations and one private sector workers’ organization and failure of the labour inspectorate and the labour courts to meet their obligation to provide appropriate protection.
2. 369. With regard to the allegations of anti-union dismissals and other acts directed against STIGSS officials, the Committee takes note of the information provided by the Government to the effect that on 22 April 2014, the tenth labour and social welfare court denied the request for authorization to dismiss a union official, Mr Miguel Ángel Delgado López; that a ruling on the appeal filed by the IGSS has yet to be issued; and that, pending the issuance of this ruling, Mr Delgado López is still employed by the IGSS. The Committee therefore requests the Government to inform it of the outcome of the appeal for authorization to dismiss Mr Delgado López. It also notes that the Government has forwarded information provided by the IGSS to the effect that the three sanctions that the administration imposed on Ms Chiroy Pumay in April 2012 (a one-day and a two-day suspension from duty without pay and a warning) were prompted by specific errors and omissions in her work.
3. 370. The Committee further notes that it has not received the information that it requested from the complainant during its previous examination of the case with regard to allegations of the anti-union termination of numerous employment contracts in the IGSS, including the names of the people in question and the dates of the dismissals. Under the circumstances, the Committee will not pursue the examination of this allegation.
4. 371. With respect to the situation of the STOPGN and its members, the Committee takes note of the Government’s statement that the collective agreement between the Office of the Attorney-General (hereinafter “the institution”) and the STOPGN is still in force; that monthly meetings between the institution’s management and the STOPGN are being held; that both the institution and the public prosecution service deny all knowledge of the criminal complaint allegedly filed by the institution against the STOPGN in 2012; and that further details are needed in order to identify it. The Committee therefore requests the complainant to provide the Government with further details and dates without delay so that the complaint can be identified.
5. 372. The Committee takes note of the complainant’s new allegation that the former head of the institution’s Labour Relations Unit has filed two complaints with the criminal courts and one complaint with the Bar Association against several STOPGN and MSICG officials in May and June 2015, respectively. The Committee also takes note of the complainant’s allegation that these complaints were filed in retaliation for legitimate trade union activities and, in particular, for a criminal complaint filed against the aforementioned former civil servant for harassing two members of the cleaning staff. The Committee notes that in its observations, the Government indicates that one of the complaints filed with the criminal courts concerns alleged acts of corruption by STOPGN officials and unlawfully obtained labour-related information that had been provided to the MSICG in order to encourage the filing of unsubstantiated complaints with the ILO, and that none of the aforementioned complaints has been resolved. While noting that the complaints against STOPGN and MSICG officials were filed by a former employee of the institution, for which she was no longer working, the Committee would like to point out that the most recent information provided by the Government shows that there has been a normalization of relations between the union and the institution. Under the circumstances, while requesting the Government to inform it of the outcome of the proceedings in the complaints filed against STOPGN and MSICG officials, the Committee invites the Government to make every effort to encourage the parties to strengthen a climate of dialogue and mutual respect.
6. 373. Concerning the situation of the STIDPP and its members, the Committee recalls that the complainant’s allegations, which the Committee was obliged to examine in the absence of observations from the Government, concerned the unlawful dismissal and transfer of several union officials in retaliation for complaints filed by the STIDPP; failure to implement the labour inspectorate’s decisions regarding the aforementioned events; and failure of the labour courts to rule on the applications for reinstatement submitted. The Committee further recalls that in Case No. 2609, it is also considering the alleged murder of Mr Manuel de Jesús Ramírez, Secretary-General of the STIDPP, on 1 June 2012.
7. 374. The Committee takes note of the Government’s observations to the effect that: (i) while Ms Amparo Amanda Ruiz Morales’ transfer was originally blocked by a decision of the labour inspectorate, her dismissal was subsequently authorized by the lower court and the appeal court and the Constitutional Court rejected her action of unconstitutionality (amparo) because the courts had ruled that there were no anti-union reasons for her dismissal; (ii) with respect to the dismissal of two union leaders, Mr Fermín Iván Ortiz Maquin and Mr Isidro Sosa de León, the court’s judgment in an amparo action that the IDPP filed against the decisions of the labour inspectorate, which had ruled that their employment contracts had been unlawfully terminated, is still pending; (iii) Mr Marvín René Doris Orellana is still employed by the IDPP and no termination proceedings have been brought against him; and (iv) with respect to the Minister of Labour’s summons to the Director-General of the IDPP, an IDPP adviser to the Director-General reports the negotiation of a collective agreement in the IDPP and establishment of a joint committee in the Institute.
8. 375. While taking note of this information, the Committee observes that the Government, in its observations, does not specify whether the courts have ruled on the application for reinstatement of the union officials, Mr Fermín Iván Ortiz Maquin and Mr Isidro Sosa de León, and whether they have been reinstated. On this point, the Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 826]. Noting that Mr Fermín Iván Ortiz Maquin and Mr Isidro Sosa de León were dismissed in 2012, the Committee requests the Government to inform it of the outcome of the legal proceedings brought by the two workers without delay; if these proceedings are still ongoing, the Committee trusts that the competent courts will issue their judgments in the near future and that those judgments will be executed promptly.
9. 376. Regarding the allegations of anti-union dismissals, and failure to execute orders for the reinstatement of numerous members of the Union of Workers of the Agricultural Company Soledad SA (SITRASOLEDAD) in 2010 and 2011, the Committee takes note that the Government indicates that: (i) the Labour and Social Welfare Court of Appeal confirmed the reinstatement of 21 union workers and revoked the reinstatement of the other 16; (ii) as the result of this non-compliance, a fine was imposed to the company and, since the non-execution of the judicial orders persisted, the file was transferred to the Public Persecutor’s Office; (iii) the concerned workers did not reiterate their interest for the reinstatement; and (iv) while the Labour and Social Welfare Court of Appeal has not been able to contact the non-reinstated workers, a person in charge of the company indicated that the workers had left the country a long time ago.
10. 377. In light of these arguments, the Committee requests the Government to inform it on the grounds on which the appeal decision was taken under, in which 21 reinstatement orders of the worker members’ union organization SITRASOLEDAD were confirmed and 16 were revoked. Regarding the 21 reinstatement orders, the Committee notes with concern from the information provided that, despite the fines imposed and the transfer of files to the Public Prosecutor, given the persistent disobedience of the company, the reinstatement orders concerning the dismissals that took place between 2010 and 2011 had not yet been executed. Recalling that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed, [see Digest, op. cit., para. 818], the Committee invites the Government to keep it informed on the actions taken by the Public Prosecutor related to the offence of non-execution of the reinstatement orders that would have been committed by the company and to ensure that all the workers concerned by the reinstatement order who wish to reintegrate their job can do so without delay. The Committee requests the Government to keep it informed in this respect.
11. 378. Additionally, the Committee again recalls that under the terms of the Memorandum of Understanding signed with the Workers’ group of the ILO Governing Body on 26 March 2013 further to the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made under article 26 of the ILO Constitution, the Government made a commitment to adopt “policies and practices to ensure the application of labour legislation, including … effective and timely judicial procedures”. Noting the repetitive character of the cases examined where the Committee observes either the slowness of legal proceedings or the non-execution of the reinstatement orders of the dismissed workers on trade union grounds (see Case No. 3062, Report No. 376, October 2015, para. 580; Case No. 2989, Report No. 372, June 2014, para. 316; Case No. 2869, Report No. 372, June 2014, para. 296), the Committee invites the Government to engage in consultation with the relevant social partners to carry out a profound revision of the procedural rules of the relevant labour regulations in a way that permits the judiciary system to offer an appropriate and effective protection in cases of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 379. 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 inform it of the outcome of the appeal for authorization to dismiss Mr Delgado López.
   • (b) While requesting the Government to inform it of the outcome of the proceedings in the three complaints filed against STOPGN and MSICG officials in 2015 and requesting the complainant to provide additional information on the criminal complaint allegedly filed against the STOPGN in 2012, the Committee invites the Government to make every effort to encourage the Office of the Attorney-General and the STOPGN to strengthen a climate of dialogue and mutual respect.
   • (c) The Committee requests the Government to inform it without delay of the outcome of the dismissal appeals filed by Mr Fermín Iván Ortiz Maquin and Mr Isidro Sosa de León; if these proceedings are still ongoing, the Committee trusts that the competent courts will issue their judgments in the near future and that those judgments will be executed promptly.
   • (d) The Committee requests the Government to inform it on the grounds on which the appeal decision was taken under, in which 21 reinstatement orders of the worker members’ union organisation SITRASOLEDAD were confirmed and 16 were revoked.
   • (e) The Committee invites the Government to inform it about the actions undertaken by the Public Prosecutor regarding the offence of non-execution of reinstatement orders that would have been committed by the company, and to ensure that all the worker members of SITRASOLEDAD subject to a judicial reinstatement order that wish to be reinstated to their job can do so without delay. The Committee requests the Government to keep it informed in this respect.
   • (f) The Committee requests the Government to engage in consultation with the relevant social partners to carry out a profound revision of the procedural rules of the relevant labour regulations in a way that permits the judiciary system to offer an appropriate and effective protection in cases of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.