Interim Report - Report No 353, March 2009

Case No 2361 (Guatemala) - Complaint date: 12-MAY-04 - Closed

Allegations: The mayor of Chinautla refused to negotiate a collective agreement and dismissed 14 union members and two union leaders; the Government is promoting a new Civil Service Act containing provisions contrary to ratified ILO Conventions on freedom of association; departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates in that Ministry; the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr Pablo Cush with payment of lost wages and is taking measures to dismiss union leader Mr Jaime Roberto Reyes Gonda without court authorization; the Directorate General for Migration refused to set up the joint committee provided for in the collective agreement; 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material were dismissed as a result of a reorganization ordered by the Minister of Education and action is being taken to dismiss all members of the union’s executive committee

1. 1011. The Committee last examined this case at its November 2007 meeting and submitted an interim report to the Governing Body [see 348th Report, paras 724–754, approved by the Governing Body at its 300th Session]. The Union of Workers of the Chinautla Municipal Authority (SITRAMUNICH) sent new allegations in a communication of 27 October 2008.
2. 1012. The Government sent further observations in communications dated 2 January, 23 June and 27 October 2008.
3. 1013. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 1014. In its previous examination of the case, the Committee made the following recommendations [see 348th Report, para. 754]:
   • (a) With regard to the dismissal of 14 trade union members and the union leader, Mr Marlon Vinicio Avalos, from the Chinautla Municipal Authority, the Committee requests the Government to keep it informed concerning the judicial proceedings under way in connection with the six workers mentioned by the Government and concerning the workers who have been effectively reinstated in their posts, and to provide information on the other dismissed workers, including the trade union leader Mr Marlon Vinicio Avalos.
   • (b) The Committee requests the Government to take the necessary measures to promote collective bargaining in the Chinautla Municipal Authority and to keep it informed in this respect.
   • (c) With regard to the civil service bill, the Committee requests the Government to keep it informed of the bill’s passage through Congress, and trusts that the ILO will provide the requested technical assistance.
   • (d) With regard to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action taken by the Ministry of Education to dismiss all the members of the executive committee, the Committee requests FENASTEG to provide information on the case file numbers or on the courts which handled the relevant proceedings, so that the Government is able to send its observations.
   • (e) …
   • (f) With regard to the dismissal of trade union leaders Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the Committee requests the Government to do everything in its power to ensure that Mr Pablo Cush – who according to the Government has been reinstated in his post – receives payment of lost wages and to keep it informed of the outcome of the judicial proceedings relating to the dismissal of trade union leader Mr Jaime Roberto Reyes Gonda. If the law prohibits or prevents the payment of these wages, the Committee considers that it should be modified.
   • (g) With regard to the new allegations presented by SONSEC and FENASTEG, the Committee: (1) requests the Government to take the necessary measures to promote collective bargaining between ONSEC and SONSEC; and (2) expects that ONSEC will consult fully with SONSEC if it intends to adopt new internal regulations. The Committee requests the Government to keep it informed in this regard.

B. New allegations

1. 1015. In its communication dated 27 October 2008, SITRAMUNICH alleges that the Chiquimula Municipal Authority dismissed several workers despite the fact that, in two sets of judicial proceedings to settle collective disputes of an economic and social nature that were before the First Instance Labour, Social Welfare and Family Court of the Department of Chiquimula (involving a summons to engage in collective bargaining), the court warned the parties not to take reprisals against each other and indicated to the municipal authority that, from that point on, court authorization was required for the termination of any employment contract. The municipal authority has initiated legal proceedings to request the termination of the employment contracts of several workers, in particular trade union members. Furthermore, the municipal authority has indicated that it will only pay the workers’ wages if they resign or sign a fixed-term contract. This led many workers to withdraw their union membership.
2. 1016. The trade union organization adds that, despite having been summoned to appear before the judicial authority, the municipal authority did not engage in collective bargaining. For its part, the judicial authority has not convened a conciliation tribunal, even though the prescribed time period has elapsed, in order to advance the collective bargaining process, which would lead to compulsory arbitration or recourse to strike.

C. The Government’s reply

1. 1017. In its communications dated 2 January, 23 June and 27 October 2008, the Government sent the following observations.
2. 1018. With regard to the civil service bill, which, according to the allegations, would contain provisions that are contrary to the ILO Conventions, the Government reports that, on 7 November 2007, the plenary of the Congress of the Republic returned the case file for Bill No. 3395 to the Labour Committee for further consideration and opinion. In this regard, the Government adds that it has requested ILO assistance for the preparation of the opinion by the Labour Committee.
3. 1019. With regard to the allegations submitted by the National Federation of Trade Unions of State Employees of Guatemala (FENASTEG) relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action being taken by the Ministry of Education to dismiss all the members of the union’s executive committee, the Government reports that the Minister of Education dismissed all the members of the union in the context of a reorganization. These dismissals were carried out in accordance with a decision of the National Civil Service Office (ONSEC). The Government indicates that the members of the union’s executive committee engaged in a collective dispute of a social and economic nature in which an application for amparo (protection of constitutional rights) was filed and rejected by the judicial authority. The trade union organization appealed to the Constitutional Court, which upheld the ruling.
4. 1020. With regard to the allegations presented by the Union of Workers of the National Civil Service Office (SONSEC), the Government indicates that, in accordance with the principle of due process, the prescribed procedures and time periods have to be respected. With regard to the allegations relating to the failure to establish a joint committee, the Government indicates that, according to ONSEC, a joint committee has already examined and settled cases that have been brought before it. With regard to the violation of the right to advancement, ONSEC indicates that this right is regulated in the Civil Service Act and in the collective agreement on working conditions.

D. The Committee’s conclusions

1. 1021. The Committee takes note of the observations of the Government, which relate to some of the issues that were pending. The Committee also takes note of the new allegations presented by SITRAMUNICH, relating to the dismissal of several workers by the Chiquimula Municipal Authority, the application to terminate the contracts of union members and the non-payment of the workers’ wages in order to force them to resign from their posts or to accept fixed-term contracts. This led to the withdrawal of many workers who belonged to the union. The Committee notes that these measures adopted by the municipality intentionally overlooked the fact that, because a collective labour dispute was before the judicial authority and in accordance with the court’s instructions, acts of reprisal among the parties and the dismissal of workers without the court’s authorization were prohibited.
2. 1022. With regard to the allegations that the Government was promoting a new Civil Service Act which, according to the trade unions, contains provisions that are contrary to the ILO Conventions, the Committee notes that the plenary of the Congress of the Republic returned the case file for Bill No. 3395 to the Labour Committee for further consideration and opinion, for which the Government once again requested ILO assistance. In this regard, the Committee has been informed that this matter is being handled in the framework of ILO technical assistance to the Tripartite Committee on International Affairs.
3. 1023. With regard to the allegations relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action to dismiss all the members of the executive committee in the context of a process of reorganization by the Minister of Education, the Committee takes note of the information provided by the Government indicating that, in the context of a reorganization, the Minister of Education dismissed all the union members in accordance with a decision of ONSEC. The Committee takes note that the Government adds that the members of the union’s executive committee engaged in a collective dispute in which an application for amparo was filed and rejected, a decision that was upheld by the Constitutional Court. In this regard, so as to be able to reach its conclusions in full knowledge of the facts, the Committee requests the Government to provide information, including figures, to indicate whether the dismissal affected only unionized workers or whether the reorganization process and subsequent dismissal also affected other workers of the institution in question. The Committee also requests the Government to send a copy of the court decisions handed down.
4. 1024. With regard to the allegations presented by SONSEC and FENASTEG, the Committee recalls that it had requested the Government to take the necessary measures to promote collective bargaining between ONSEC and SONSEC, and that ONSEC should consult fully with SONSEC if it intended to adopt new internal regulations. The Committee notes that the Government’s reply does not relate in any way to these allegations. Consequently, the Committee reiterates its previous recommendations.
5. 1025. The Committee notes with regret that the Government has not sent its observations with regard to the other pending matters. In these circumstances, the Committee is bound to reiterate its previous recommendations:
   • – With regard to the dismissal of 14 trade union members and the union leader, Mr Marlon Vinicio Avalos, from the Chinautla Municipal Authority, the Committee requests the Government to keep it informed concerning the judicial proceedings under way in connection with the six workers mentioned by the Government and concerning the workers who have been effectively reinstated in their posts, and to provide information on the other dismissed workers, including the trade union leader Mr Marlon Vinicio Avalos.
   • – The Committee requests the Government to take the necessary measures to promote collective bargaining in the Chinautla Municipal Authority and to keep it informed in this respect.
   • – With regard to the dismissal by the Directorate General for Migration of trade union leaders Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the Committee requests the Government to do everything in its power to ensure that Mr Pablo Cush – who according to the Government has been reinstated in his post – receives payment of lost wages and to keep it informed of the outcome of the judicial proceedings relating to the dismissal of trade union leader Mr Jaime Roberto Reyes Gonda. If the law prohibits or prevents the payment of these wages, the Committee considers that it should be modified.
6. 1026. The Committee requests the Government to send its observations on the latest allegations presented by SITRAMUNICH relating to the dismissal of various workers by the Chiquimula Municipal Authority and the pressure placed by the Municipal Authority on the workers, who were not paid until they resigned or accepted a fixed-term contract, even though because a collective labour dispute is before the judicial authority and, in accordance with the court’s instructions, acts of reprisal among the parties and the dismissal of workers without the court’s authorization are prohibited.

The Committee's recommendations

1. 1027. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations relating to the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material and the action taken to dismiss all the members of the executive committee in the context of a process of reorganization by the Minister of Education, the Committee, so as to be able to reach its conclusions in full knowledge of the facts, requests the Government to provide information, including figures, indicating whether the dismissal affected only unionized workers or whether the reorganization process and subsequent dismissal also affected other workers of the institution in question. The Committee also requests the Government to send a copy of the court decisions handed down.
   • (b) With regard to the allegations presented by SONSEC and FENASTEG, the Committee requests the Government to take the necessary measures to promote collective bargaining between ONSEC and SONSEC and expects that ONSEC will consult with SONSEC if it intends to adopt new internal regulations.
   • (c) With regard to the dismissal of 14 trade union members and the union leader, Mr Marlon Vinicio Avalos, from the Chinautla Municipal Authority, the Committee requests the Government to keep it informed concerning the judicial proceedings under way in connection with the six workers mentioned by the Government and concerning the workers who have been effectively reinstated in their posts, and to provide information on the other dismissed workers, including the trade union leader Mr Marlon Vinicio Avalos.
   • (d) The Committee requests the Government to take the necessary measures to promote collective bargaining in the Chinautla Municipal Authority and to keep it informed in this respect.
   • (e) With regard to the dismissal by the Directorate General for Migration of trade union leaders Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the Committee requests the Government to do everything in its power to ensure that Mr Pablo Cush – who according to the Government has been reinstated in his post – receives payment of lost wages and to keep it informed of the outcome of the judicial proceedings relating to the dismissal of trade union leader Mr Jaime Roberto Reyes Gonda. If the law prohibits or prevents the payment of these wages, the Committee considers that it should be modified.
   • (f) The Committee requests the Government to send its observations on the latest allegations presented by SITRAMUNICH relating to the dismissal by the Chiquimula Municipal Authority and the pressure placed by the Municipal Authority on the workers, who are not paid until they resign or accept a fixed-term contract, even though because a collective labour dispute is before the judicial authority and in accordance with the court’s instructions, acts of reprisal among the parties and the dismissal of workers without the court’s authorization are prohibited.