Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2709 (Guatemala) - Complaint date: 20-APR-09 - Closed

Allegations: Anti-union dismissals and acts of intimidation following the establishment of the Trade Union of the National Institute of Forensic Sciences (SITRAINACIF)

1. 1004. The Committee examined this case at its June 2011 meeting and submitted an interim report to the Governing Body [360th Report of the Committee, paras 642–655, approved by the Governing Body at its 311th Session, June 2011].
2. 1005. The Government sent its observations in communications dated 25 October 2011 and 6 September 2012.
3. 1006. 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. 1007. At its June 2011 meeting, the Committee made the following interim recommendations on the allegations submitted by the complainant organizations [see 360th Report, para. 665]:
   • (a) The Committee urges the Government to send its observations on the allegations without further delay.
   • (b) With regard to the dismissal of the 16 INACIF workers, the Committee requests the Government to indicate whether the workers have indeed been reinstated and, should this not be the case, to take the necessary measures to give effect to the orders of the labour and social welfare courts as soon as possible.
   • (c) With regard to the application for trade union registration of the SITRAINACIF, the Committee requests the Government to take all necessary measures without delay to ensure that the trade union is immediately registered if, as it appears, it meets all the legal requirements for registration.
   • (d) The Committee requests the Government to communicate the status of the complaints filed with the Department of the Public Prosecutor by the trade union’s interim Secretary-General.
   • (e) With regard to the alleged criminal proceedings against the trade union’s interim Secretary-General, the Committee requests the Government to provide its observations on the matter and to communicate the status of those proceedings.
   • (f) With regard to the forum for dialogue that met to find solutions and which, according to the allegations, the trade union’s interim Secretary-General was prevented by the Government from participating, the Committee requests the Government to take the necessary measures to ensure that the parties involved can meet with a view to reaching an agreement without pressure and to keep it informed in that respect.

B. The Government’s reply

1. 1008. In a communication dated 25 October 2011, the Government provides detailed information about the measures taken with regard to working conditions at the National Institute of Forensic Sciences (INACIF), particularly safety and health, training and matters that were raised by the complainant organization.
2. 1009. With regard to the allegation that INACIF officials have resorted to disguising the employment relationship by hiring the majority of staff on a temporary basis to avoid having to set money aside for labour liabilities and to keep workers in a state of job insecurity, preventing them from forming or joining a trade union, the Government states that Guatemalan law deals with the hiring of staff under budget lines 011 and 022, and the hiring of professional services under budget lines 029 and 182. INACIF has staff hired under all these lines. Those recruited under budget lines 022 and 011 enjoy more employment benefits than professional services staff, as well as ongoing training. The right to join and form trade unions is guaranteed in the Political Constitution of the Republic of Guatemala and all employers are required by law to observe it. The abovementioned forms of recruitment are determined by law, so workers can be hired under any of them without breach of any constitutional rights.
3. 1010. With regard to the allegation that the workers who took the initiative to establish the Trade Union of the National Institute of Forensic Sciences (SITRAINACIF) were denied access to their place of work by order of the Institute, the Government indicates that no order was issued barring employees from their place of work; on the contrary, anyone hired by INACIF is required to report for duty punctually.
4. 1011. As regards the employment status of the workers who were allegedly denied access to their place of work, the Government reports as follows:
   • – Ms Evelyn Jannette Garcia Caal, on ascertaining that she had indeed been dismissed, filed an application for reinstatement with the Third Labour and Social Welfare Court, which ordered her reinstatement by a decision of 23 April 2008. INACIF appealed that decision before the First Chamber of the Labour and Social Welfare Appeals Court. The Chamber allowed the appeal and accordingly set aside the decision of the Court of First Instance, thereby quashing the reinstatement. The employee lodged a constitutional (amparo) appeal with the Supreme Court of Justice (Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio)) on 20 November 2009. The court allowed the amparo appeal against the decision of the First Chamber of the Court of Appeals, thereby reinstating the employee in the position she had been in prior to that decision. It also ordered INACIF to settle matters in accordance with the law. INACIF filed an appeal against that ruling with the Constitutional Court on the grounds that an amparo action was not admissible in a body responsible for reviewing the decisions of the competent authorities and that the matter was one for the ordinary courts. However, the Constitutional Court upheld the decision of the Supreme Court of Justice and sent the file back to the First Chamber for execution. The First Chamber ordered reinstatement of the employee, thus confirming the decision of 23 April 2008 handed down by the Third Labour and Social Welfare Court, and dismissed INACIF’s appeal.
   • – Ms Dora María Caal Orellana applied for reinstatement to the Fifth Labour and Social Welfare Court, which granted it on 22 April 2008. INACIF having failed to comply, the Fifth Court issued an enforcement order. INACIF sought reconsideration of the order but the Fifth Court rejected the appeal. INACIF challenged that decision before the Third Chamber of the Labour Appeals Court. This time the appeal succeeded and the enforcement order was revoked on the grounds that the National Institute of Forensic Sciences of Guatemala (INACIF) is not the entity denounced in the proceedings against the “National Institute of Forensic Sciences (INACIF)” since it has a different legal personality.
   • – Ms Ana Verónica Lourdes Morales applied for reinstatement to the First Labour and Social Welfare Court, which ordered her reinstatement in a decision of 28 April 2008. But, on 1 September 2009, she informed the court that she wished to withdraw all her claims, and the court recorded the withdrawal of her suit on 10 September 2009, the date on which the higher court returned the file to it.
5. 1012. With regard to the dismissal of the other 13 workers who took part in the establishment of the union, the Government provides the following information on the status and outcome of the court proceedings:
   • – Mr Byron Minera applied to the Second Labour and Social Welfare Court. In a decision of 18 April 2008 the court ordered his reinstatement and imposed on the Director-General of INACIF a fine equal to ten minimum monthly wages at the rate applying to non-agricultural work. On 29 January 2010 the employee withdrew his claim to reinstatement so as to end the dispute, having reached an out-of-court settlement with INACIF. The court endorsed the settlement on 5 February 2010 and ordered the closure of the proceedings.
   • – Mr Carlos Rubio applied for reinstatement to the Seventh Labour and Social Welfare Court, which ordered it in a decision of 30 April 2008. INACIF failed to implement the order and, in exercise of its right of defence, challenged the court’s decision, pursuing all available means of redress. At present the decision still stands and is enforceable, all the means of redress having been exhausted. A new decision was accordingly issued on 15 April 2011 appointing a bailiff from the Auxiliary Services Centre of the Labour Law Administration to enforce the decision and secure the reinstatement. That decision has been duly notified to the parties and all that now remains is for INACIF to implement it.
   • – Mr Ellison Barillas applied for reinstatement to the Second Labour and Social Welfare Court. By a decision of 23 April 2008 the court ordered reinstatement and imposed on INACIF a fine equal to ten minimum monthly wages at the rate applying to non-agricultural work. On 6 May 2008, the Director-General of INACIF challenged the decision but provided no evidence of any authorization from a court to terminate the employment relationship with the employee. Consequently, on 1 August 2008, the Second Chamber of the Court of Appeals upheld the impugned decision. It also ordered a 50 per cent increase of the fine. On 17 October 2008, the Secretary of the Second Chamber certified that the decision stood, there having been no appeals or notifications, and sent the file back to the Second Court for execution of the decision. The Second Court ordered the employer to reinstate the worker in his post immediately and to pay him the wages that had accrued between the date of his dismissal and his actual reinstatement. To date, there has been no response from INACIF.
   • – Mr Flavion Díaz applied for reinstatement to the Sixth Labour and Social Welfare Court on 21 April 2008. Following the completion of those proceedings, on 21 May 2008, the Court ordered INACIF to reinstate the employee immediately and under the same working conditions, and to pay a fine of 15,000 Guatemalan quetzales, which is equal to ten monthly minimum wages at the rate applying to non-agricultural work. On 15 June 2009, the employee informed the Sixth Court that he withdrew his claim to reinstatement unreservedly, having reached a satisfactory agreement with INACIF. The court recorded the withdrawal of his suit and ordered the case to be closed.
   • – Ms Irma Palma applied for reinstatement to the Eighth Labour and Social Welfare Court, which ordered it by a decision of 24 April 2008. The decision has not been implemented owing to various appeals filed by INACIF, and the employee last renewed her application on 1 February 2011. She has not been reinstated because her employer has declined to comply with the reinstatement order.
   • – Mr Jorge Hernández applied to the Court of First Instance which ordered his reinstatement in a decision of 19 April 2008. INACIF challenged the decision and the appeal was heard by the First Chamber of the Court of Appeals. By a decision of 30 October 2008, the First Chamber rejected the appeal and upheld the decision of the lower court. Dissatisfied with this outcome, INACIF filed an appeal under the constitution (amparo) against the First Chamber’s ruling. The appeal was allowed by the Supreme Court of Justice (Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio)). In response to the latter’s ruling, the First Chamber issued a new decision on 14 July 2010, revoking the decision by the Court of First Instance, thereby rejecting the employee’s application for reinstatement. At present, that decision stands and is enforceable.
   • – Mr Leonel Pérez applied to the Fourth Labour and Social Welfare Court for reinstatement, which was ordered on 18 April 2008. INACIF appealed, but by a decision of 13 November 2008, the First Chamber of the Court of Appeals upheld the impugned decision on the grounds that INACIF failed to apply the procedure for terminating a work contract laid down in sections 379 and 380 of the Labour Code. Dissatisfied with this outcome, INACIF brought amparo proceedings before the Supreme Court of Justice (Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio)), which rejected the appeal on 21 September 2009 as inadmissible. INACIF appealed against that ruling to the Constitutional Court, which found that the provisions of the Civil Service Act ought to have been applied. INACIF argued that the employee was a probationer and had been ever since he was hired (on 3 March 2008), and that throughout the probationary period his performance was to be appraised so as to ascertain whether he met the requirements and was suited to the post. If his performance reports showed that he was unable to perform his duties, his contract might be terminated, with or without reason, and without notice or any form of compensation. The Constitutional Court found the decision of the First Chamber of the Court of Appeals to be at odds with the law and so allowed INACIF’s amparo appeal thereby suspending the First Chamber’s ruling. The employee filed an appeal for clarification of the Constitutional Court’s ruling but, on 1 September 2010, the Constitutional Court held that its ruling was clear and unambiguous and overlooked none of the issues submitted. It accordingly rejected the application for clarification. The file went back to the First Chamber of the Court of Appeal, which, on 5 November 2010, issued a decision allowing INACIF’s appeal, thereby revoking the decision of 18 April 2008 of the Fourth Labour and Social Welfare Court and rejecting the employee’s application for reinstatement.
   • – Ms Lesly Escobar applied for reinstatement to the Fifth Labour and Social Welfare Court, which issued a decision on 18 April 2011 ordering reinstatement in her former job. As matters now stand, INACIF has not reinstated her, despite an executor having been appointed several times to enforce the court’s order. She has several times asked to have the reinstatement order notified to Miriam Dolores Ovalle de Monroy in her capacity as Director-General of INACIF, but her applications have been turned down on the grounds that the name she indicated was incorrect. She has therefore not been reinstated.
   • – Ms Lucrecia Solórzano applied for reinstatement to the Third Labour and Social Welfare Court, which issued a decision on 23 April 2008, ordering INACIF to reinstate her in the same post and under the conditions she enjoyed before dismissal until actual reinstatement. On 18 June 2009, she filed an unqualified withdrawal of her claim to reinstatement, having reached a final settlement with INACIF. The notice of withdrawal meeting all the legal requirements, the court recorded the withdrawal of suit on 19 June 2009.
   • – Ms María Girón applied for reinstatement to the Fourth Labour and Social Welfare Court, which ordered it by a decision of 23 April 2008. INACIF appealed and, on 3 October 2008, the First Chamber of the Labour and Social Welfare Court of Appeals upheld the lower court’s decision. Receiving notification of the decision, INACIF brought amparo proceedings before the Supreme Court of Justice (Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio)). The Supreme Court rejected the amparo action brought by INACIF on 11 February 2010 and, since no further remedies were pending, remanded the file to the Fourth Labour and Social Security Court for implementation of the decision.
   • – Mr Mario Yaguas applied for reinstatement to the Seventh Labour and Social Welfare Court, which ordered it in a decision of 2 May 2008, which was duly notified to the parties. Dissatisfied with this outcome, INACIF challenged the decision, resorting to all available means of redress. A new decision was issued on 17 April 2011 appointing a bailiff from the Centre for Auxiliary Services of the Labour Law Administration to execute the decision and reinstate the employee. That decision was duly notified to the parties and all that now remains is for INACIF to comply with the decision of the Seventh Labour and Social Welfare Court.
   • – Mr Minor Ruano applied to the Sixth Labour and Social Welfare Court, which issued a decision on 28 April 2008 ordering his reinstatement. On 9 May 2008, INACIF appealed against that decision. On 20 January 2011, the Third Chamber of the Court of Appeals examined the decision of the Sixth Labour Court and upheld it. That ruling was notified to the parties on 20 May 2011.
   • – Mr Oscar Velázquez applied for reinstatement to the Second Labour and Social Welfare Court, which ordered it on 18 April 2008. INACIF having exhausted all available remedies, the reinstatement was upheld. At present the decision stands but has not been implemented by INACIF.
6. 1013. With regard to the complainant’s statement that Ms Miriam Gutiérrez de Monroy filed a petition with the General Labour Directorate objecting to the establishment of the INACIF trade union, SITRAINACIF, an act that implies a clear violation of freedom of association and of the principle of non-interference, the Government has forwarded the observations of INACIF’s general secretariat. The secretariat explains that the purpose of the petition was not to object to the establishment of a union, but to point out that there were substantive flaws in that the written consent of 20 workers was missing. At no time did the Director object to freedom of association: the law guarantees it and public servants are not above the law. Furthermore, as regards INACIF’s application for reversal of the decision by the General Labour Directorate to dismiss the objection to the founding of a union, the General Labour Directorate states that, by Decision No. 114-2009 of 11 June 2008, the Ministry of Labour and Social Welfare rejected INACIF’s application as inadmissible.
7. 1014. With regard to the accusations of harassment and persecution of the union’s interim secretary, the Government and the Attorney-General’s Unit for Investigation of Crimes against Journalists and Trade Unionists indicate that in the complaint identified by the number MP001/2008/42310, in which the aggrieved party is Ms Evelyn Jannette García Caal, the latter was heard by the Office of the Attorney-General on 25 August 2009 and submitted an application to withdraw her complaint. The application was found admissible and the withdrawal recorded on 19 October 2009. It was notified on 5 November 2009.
8. 1015. With regard to the allegation that INACIF officials are exerting pressure on the employees who were not dismissed for having taken part in the union’s founding, threatening them with dismissal, the General Secretariat of INACIF states that the Institute respects the right of all workers to form and join a trade union or an association, and has never threatened or put pressure on staff, as is borne out by the labour inspectors who pay regular visits to INACIF facilities and interview serving staff members.
9. 1016. With regard to the definitive shelving of the union’s application for registration, the General Labour Directorate indicates that the dossier was wrongly and unlawfully shelved by General Labour Directorate Order No. 14-2009, that the procedure has accordingly been rectified and the offending order withdrawn. Instructions have been given to pursue the proper procedure.
10. 1017. With regard to the forum for dialogue which the union’s interim secretary was barred from attending, the Government states that, in March 2009, SITRAINACIF was a union in the process of being formed. In the forum for dialogue, the Ministry of Labour unfailingly respected the rights conferred on such unions by section 217 of the Labour Code. By Decision No. 84-2009 of 7 December 2009, the General Labour Directorate recognized the legal personality of SITRAINACIF, approved its statutes and ordered that it be registered and published free of charge in Diario Oficial No. 1967, folios 10713 and 10729, Book 21, pertaining to registration of the legal personality of trade union organizations, 10 December 2009. Accordingly, the union is now operational.

C. The Committee’s conclusions

1. 1018. The Committee takes note of the detailed information sent by the Government and recalls that in this case the complainant organization alleges anti-union dismissals and acts of intimidation following the establishment of SITRAINACIF on 15 April 2008.
2. 1019. With regard to recommendation (b) concerning the dismissal of 16 INACIF employees, the Committee notes that the Government reports as follows: four of them withdrew their claims to reinstatement; two had their applications for reinstatements dismissed; six have not been reinstated despite a court ruling in their favour because INACIF declines to execute the court decisions; and the last four were awarded reinstatement but it is not as yet known whether they have actually been reinstated. The Committee reiterates that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105]. The Committee strongly urges the Government to take the necessary steps to secure the immediate execution of the rulings of the labour and social welfare courts in favour of Ms Evelyn Jannette García Caal, Ms Dora María Caal Orellana, Mr Carlos Rubio, Mr Ellison Barillas, Ms Irma Palma, Ms Lesly Escobar, Ms María Girón, Mr Mario Yaguas, Mr Minor Ruano and Mr Oscar Velázquez. The Committee asks the Government to keep it informed in this regard.
3. 1020. With regard to recommendation (c) concerning the registration of SITRAINACIF, the Committee notes that, according to the Government, the union’s legal personality has been recognized and the union’s statutes approved, and that its registration and publication in the Diario Oficial were ordered, thus the union is now operational.
4. 1021. With regard to recommendation (d) concerning the status of the complaints of harassment and persecution filed with the Department of the Public Prosecutor by SITRAINACIF’s Secretary-General, the Committee notes the Government’s statement that the injured party was heard by the Office of the Attorney-General on 25 August 2009, that an application for withdrawal of suit was filed, that it was allowed and the withdrawal recorded on 19 October 2009 and notified on 5 November 2009.
5. 1022. With regard to recommendation (e) concerning the alleged criminal proceedings against SITRAINACIF’s interim Secretary-General, the Committee notes that the Government has not commented on this matter and requests it to do so without delay.
6. 1023. With regard to the forum for dialogue to which the union’s interim Secretary-General was denied access, the Committee notes that the Government reports that, at the time, the union was in the process of being formed and that the rights conferred on it by law were always observed. Noting that SITRAINACIF has now been registered, the Committee requests the Government to indicate whether the parties have been able to meet in order to reach agreement on matters still pending.

The Committee’s recommendations

1. 1024. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly urges the Government to take the necessary steps to secure early implementation of the rulings issued by the labour and social welfare courts in favour of Ms Evelyn Jannette García Caal, Ms Dora María Caal Orellana, Mr Carlos Rubio, Mr Ellison Barillas, Ms Irma Palma, Ms Lesly Escobar, Ms María Girón, Mr Mario Yaguas, Mr Minor Ruano and Mr Oscar Velázquez. The Committee requests the Government to keep it informed in this regard.
   • (b) With regard to the alleged criminal proceedings against the interim Secretary-General of SITRAINACIF, the Committee notes that the Government has not sent observations on the matter and accordingly asks it to do so without delay.
   • (c) With regard to the forum for dialogue to which the union’s interim Secretary-General was denied access, the Committee notes that SITRAINACIF has now been registered and asks the Government to indicate whether the parties have been able to meet in order to reach agreement on matters still pending, particularly the reinstatement of the workers dismissed.