Definitive Report - Report No 342, June 2006

Case No 2421 (Guatemala) - Complaint date: 20-APR-05 - Closed

Allegations: Failure by the Ministry of Public Health and Social Assistance to comply with provisions of the collective agreement relating to trade union leave and the deduction of trade union dues

567. The complaint appears in a communication from the National Trade Union of Health Workers of Guatemala (SNTSG) dated 20 April 2005.

1. 568. Since there was no reply from the Government at the Committee’s March 2006 meeting [see 340th Report, para. 10], the Committee made an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedure established in its 127th Report [para. 17] approved by the Governing Body, it would present a report on the substance of the case at its next meeting, even if the information or complete observations requested had not been received in due time. To date, no observations have been received from the Government.
2. 569. 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. The complainant’s allegations

1. 570. In its communication dated 20 April 2005, the National Trade Union of Health Workers of Guatemala (SNTSG) alleges that the Ministry of Public Health and Social Assistance deliberately misinterprets what is stipulated in the collective agreement on working conditions, in particular those provisions concerning the granting of trade union leave, undermining this right in practice in order to restrict freedom of association.
2. 571. Although the granting of union leave is governed by section 20 of the existing collective agreement of 2000, which provides for greater rights than the Labour Code, the Ministry of Labour is imposing less favourable provisions; specifically, it has enforced the provisions of the Labour Code regarding such leave on the basis of the biased decisions of its own staff. These decisions overlook the fact that the Ministry of Labour and Social Security itself, in a resolution dated 15 May 2001, clearly stated that the provisions of section 20 of the collective agreement must be respected in granting union leave to Ministry of Public Health and Social Assistance officials. The complainant organization states that the new ruling of the Ministry of Labour and Social Security (General Labour Inspectorate) dated 20 December 2004 revokes its previous ruling of 15 May 2001; on the basis of this new ruling, union officials are informed by their line managers that union leave will henceforth have to comply with the provisions of the Labour Code in that paid union leave will be limited to six days per year.
3. 572. The complainant organization also states that attempts to restrict freedom of association were made by the Ministry of Public Health when it refused to deduct trade union dues, citing supposed legal requirements, despite being required to do so by section 21 of the collective agreement on working conditions. In fact, since 13 February 2004, when the deduction of union dues was requested, it has allegedly refused to do so in a manner that is arbitrary and an abuse of authority. In a memorandum dated 13 February 2004, the authorities cite the lack of infrastructure as the reason.
4. 573. The following are the relevant provisions of the collective agreement:
5. Section 20: “… the Ministry of Public Health and Social Assistance shall grant paid leave to […] nine members of the National Executive Committee of the SNTSG while they remain in office […]”;
6. Section 21: “… The Ministry of Public Health and Social Assistance shall deduct regular trade union dues from the wages of workers affiliated to the SNTSG, in accordance with the labour laws and statutes in force, as well as deducting additional dues in special cases as required by the union. For the purposes of this section, the SNTSG shall make available the payroll list of its members so that the dues can be deducted by the Ministry of Finance, which shall then transfer the money by cheque to the SNTSG [...]”.
7. 574. The complainant organization supplies the documents to which it refers.

B. The Committee’s conclusions

1. 575. The Committee deeply regrets that, despite the time that has elapsed since the complaint was presented, the Government has still not responded to the allegations made by the complainant organization, despite the fact that the Committee has on a number of occasions urged it to send its observations or information on the case, including through an urgent appeal made at its March 2006 meeting. Under these circumstances, and in accordance with the procedure established in its 127th Report [para. 17] approved by the Governing Body, the Committee indicated that it would present a report on the substance of the case at its next meeting, even if the information or complete observation requested had not been received in due time.
2. 576. The Committee recalls that the purpose of the procedures instigated by the International Labour Organization for the examination of alleged violations of freedom of association is to ensure that this freedom is respected in law and in fact. The Committee therefore believes that, while the procedure protects governments against unfounded accusations, the governments themselves must recognize the importance of supplying detailed and accurate information on the allegations made in order to allow an objective examination.
3. 577. The Committee notes that the allegations in this case refer to the failure of the Ministry of Public Health and Social Assistance to comply with the provisions of the existing 2000 collective agreement on working conditions, specifically those concerning the granting of union leave and the deductions of union dues.
4. 578. With regard to the issue of union leave, the Committee notes that, although section 20 of the collective agreement states that “the Ministry shall grant paid union leave to nine members of the executive committee while they remain in office”, that is, without a priori limiting the number of days of paid leave (as stated in the General Labour Inspectorate’s resolution of 15 May 2001), the ruling of the General Labour Inspectorate of 22 December 2004 (supplied by the complainant organization) states that union leave for nine members of the national executive committee must be understood as trade union leave within the meaning of the Labour Code, according to which such leave should comprise six days of paid leave and as many additional days as necessary of unpaid leave; a communication from the human resources manager dated 22 February 2005, a copy of which is provided by the complainant organization, confirms that paid leave is of six days’ duration.
5. 579. The Committee understands the complainant organization’s concern about the change in the public administration’s interpretation of section 20 of the collective agreement, especially in view of the fact that the collective agreement dates from 2000 and was negotiated between the complainant trade union and representatives of the previous administration, who interpreted it in the same way as the union. The Committee also highlights the fact that it is difficult to sustain the new administration’s interpretation, according to which the provisions of the collective agreement are identical to those of the Labour Code, i.e. six days of paid leave. The Committee points out that the clause in question does not specify a fixed number of days of paid leave, but rather links the duration of union leave to the length of time in office.
6. 580. Under these circumstances, the Committee requests the Government to ensure that section 20 of the collective agreement (relating to trade union leave) is complied with, and draws the Government’s attention to the fact that, in the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be acting as judge as well as party in the case, but rather that of an independent authority.
7. 581. As to the issue of the deduction of union dues from the wages of members of the complainant organization (section 21 of the collective agreement), the Committee notes the memorandum from the Legal Adviser’s Office of the Ministry of Public Health and Social Assistance dated 13 February 2004 (supplied by the complainant), according to which the application of this rule “is not enforceable, given that the Ministry of Health and Social Assistance does not currently have at its disposal the infrastructure required to implement such a measure […]”.
8. 582. The Committee recalls that collective agreements must be binding on both parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 818] and urges the Government to take the necessary measures without delay to ensure the effective observance of section 21, including the establishment of the appropriate infrastructure.

The Committee's recommendations

1. 583. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that the Government has not responded to the allegations, despite having been asked to do so on a number of occasions, including through an urgent appeal.
   • (b) The Committee requests the Government to ensure compliance with section 20 of the collective agreement applicable to the National Trade Union of Health Workers of Guatemala (SNTSG) (concerning union leave), and draws the Government’s attention to the fact that, in the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be judge and party in the case, but rather that of an independent authority.
   • (c) The Committee recalls that collective agreements must be binding on both parties, and urges the Government to take the necessary measures without delay to ensure compliance with section 21 of the collective agreement relating to the deduction of union dues for the SNTSG, including the establishment of the appropriate infrastructure.