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

Case No 2872 (Guatemala) - Complaint date: 27-MAY-11 - Closed

Allegations: Anti-trade union persecution and practices, refusal to negotiate a list of demands, obstacles to exercise of the right to collective bargaining and non-observance of provisions of a collective agreement in the Ministry of Labour and Social Welfare

1. 1064. The complaint is contained in a communication from the Trade Union Federation of Public Employees (FENASTEG) dated 27 May 2011. The complainant organization sent further allegations in communications dated 29 February, 26 March, 9 May, 1 June and 20 June 2012.
2. 1065. The Government sent its observations in a communication dated 12 March 2012.
3. 1066. 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. The complainant’s allegations

1. 1067. In a communication of 27 May 2011, FENASTEG alleges non-observance by the Ministry of Labour and Social Welfare of the collective agreement on working conditions in force in the Ministry. One requirement of the agreement is that any claims relating to labour disputes are to be addressed with the trade union that signed the agreement, which was not done. Furthermore, the so-called “recreation bonus” of 250 quetzales (GTQ), due at the end of April 2011, has not been paid.
2. 1068. The complainant organization further states that the Ministry of Labour and Social Welfare has recognized two groups of workers as having authority to discuss wage increases and job reclassification. The workers in question may be entitled to submit claims but they lack authority to seek economic gains collectively; trade unions exist for that purpose and according to labour law have sole responsibility in this area. The complainant stresses that in this case the two groups are unconnected and that they do not represent any trade union, in breach of ILO Conventions Nos 87 and 98. Only workers who are organized in unions are entitled, through their legal representatives and in accordance with Guatemalan labour law, to negotiate economic and social gains through collective instruments such as collective labour agreements and collective agreements on working conditions. The groups of workers set up to seek wage increases may take individual action, either singly or severally, but they may in no event take action in the area of collective rights and the law is quite clear that any economic or social gains are to be negotiated with the trade union having the largest membership, which in the case of the Ministry of Labour is the General Trade Union of Employees of the Ministry of Labour and Social Welfare (SIGEMITRAB), which is joint signatory, together with the Ministry of Labour, of the collective agreement on working conditions that governs labour relations in the Ministry.
3. 1069. The complainant also reports anti-union discrimination against SIGEMITRAB officials, although the Ministry set up a committee of three labour inspectors who at the same time are SIGEMITRAB officials, and indicates that the Ministry approved an annual plan of inspection visits to farms and agricultural institutions which has not been implemented. The complainant objects that the head of the General Labour Inspectorate is constantly seeking to obstruct the plan by slandering and stigmatizing the labour inspectors who hold trade union office. The latter have been accused of corruption without so much as a shred of evidence or any legal action against them, the sole aim being to discredit them in a context of persistent discrimination due to their trade union leadership.
4. 1070. The complainant states that the head of the General Labour Inspectorate wanted to pit the trade union leaders against the other inspectors in the belief that in the course of their work and in carrying out the inspections, they would deplete the inspectorate’s travel allowance budget so that there would be none left for the other inspectors. The complainant asks the Minister to secure proper implementation of the plan that he himself authorized; failure to do so will perpetuate the discrimination against the labour inspectors who hold trade union office in SIGEMITRAB, namely: Mr Shuvert Alí del Valle Rodríguez, Mr Víctor Manuel Dávila Rivera and Mr Néstor Estuardo de León Mazariegos.
5. 1071. Furthermore, on 17 May 2011 the collective agreement on working conditions was terminated and a new draft agreement proposed. The Ministry has not as yet appointed a negotiating committee and the complainant says it fears that the intent may be to restrict the right to collective bargaining on the pretext that there are not the funds to negotiate a new agreement. This complaint has been filed as an incentive to the State of Guatemala to seek the means to fulfil the right to collective bargaining in the institution at the head of labour policy, namely the Ministry of Labour.
6. 1072. In a communication of 29 February 2012, the complainant reports that a collective dispute about social and economic matters, triggered by the refusal to negotiate a new collective agreement, is currently before the 11th Labour and Social Welfare Court. It points out that the dossier of the proceedings contains the lists of members of the three trade unions coexisting in the Ministry of Labour, which clearly state that the majority union with authority to discuss and negotiate the new collective agreement is SIGEMITRAB, which initiated the collective dispute. According to the complainant, there is no real will to negotiate since a delegation to discuss the new collective agreement has not been formed. The Ministry sought a recount to satisfy itself that SIGEMITRAB is indeed the majority union and was informed that a conciliation tribunal has already been set up. The complainant adds that several equal pay claims were filed because cash bonuses were given to some workers and this amounted to discrimination against the rest.
7. 1073. In a communication of 26 March 2012, the complainant organization states that the Ministry of Labour and Social Welfare has declined to solve labour issues that have arisen in the municipality of Siquinala. The mayor dismissed a member of the executive committee of the Siquinala Municipal Workers’ Union (SISEMUS), which is affiliated to FENASTEG, and the Minister of Labour has not played the role required of him by ILO Conventions Nos 87 and 98, and section 211(a) of the Labour Code. The complainant organization believes it important to point out that because the Secretary of FENASTEG – who is also the General Secretary of SIGEMITRAB – has worked in the Ministry in a supervisory capacity in connection with the implementation of the collective agreement on working conditions applying in the Ministry, and with further submissions for the complaints he lodged on FENASTEG’s behalf , the Ministry of Labour and Social Welfare has stated openly to other members of FENASTEG’s executive committee that he wished to initiate proceedings to dismiss the Secretary on the grounds that he is disrupting his own work, provoking disorder in the institution and overstepping his boundaries, among other shortcomings that he lists, including acts of corruption. The aim is to intimidate the trade union leader so that he will give up his supervisory work and drop the duties he performs as trade union officer for all the workers affiliated to the union and the federation he represents.
8. 1074. In a communication of 9 May 2012, the complainant indicates that it has been informed that the Ministry of Labour and Social Welfare has appointed the committee to negotiate the agreement in the context of the collective dispute on social and economic issues currently before the 11th Labour and Social Welfare Court. The complainant contends that it did so with the sole aim of hindering negotiation in the court proceedings, filing an application under the constitution (acción de amparo) to delay the court proceedings and requesting direct negotiations. It was again explained that according to section 51(b) of the Labour Code, the employer, in this case the State of Guatemala as represented by the Ministry of Labour and Social Welfare, must negotiate the collective agreement with the majority trade union in the institution, which in this instance is SIGEMITRAB. In fact, the Minister’s sole intent is to delay the administration of justice and the negotiation of the new collective agreement.
9. 1075. The complainant further reports that several equal pay claims have been filed on grounds of wage discrimination: some labour inspectors were granted a bonus known as a “personal supplement”, and job reclassification is not the answer because the bonus is applied to people, not to posts and reclassification improves only the post and pay. The only way out is for the Minister himself to extend the bonus to the other labour inspectors. Proceedings also had to be brought to quash the appointment of the General Inspector of Labour which was in breach of the Civil Service Act and Regulations. According to the complainant, because of these suits the Minister has seen fit to tarnish the image of the officers of SIGEMITRAB and has initiated disciplinary proceedings against the General Secretary for having accompanied a female colleague in her inspection work. However, such conduct is not subject to any legal constraints under section 281 of the Labour Code and the attempt to sanction it constitutes a typical act of reprisal.
10. 1076. In communications of 1 and 20 June 2012, the complainant organization reports that on 20 October 2011, the Ministry of Labour and Social Welfare signed a collective agreement on working conditions with the two other trade unions in the Ministry, namely the General Trade Union of Workers of the Ministry of Labour and Social Welfare (SITRAMITRAPS) and the Trade Union of Workers of the Ministry of Labour and Social Welfare. Neither is a majority union and according to section 51(b) of the Labour Code the new agreement ought to have been negotiated with SIGEMITRAB. The law does not provide for a majority to be reached by adding two unions together, because votes are counted for each union separately. Furthermore, the collective dispute proceedings are still under way; they were suspended temporarily by the amparo (protection of constitutional rights) action brought by the Minister to the Second Labour and Social Welfare Chamber, which ordered a temporary stay of proceedings almost immediately. According to the complainant, the signing of a collective agreement with the other two unions was aimed at destabilizing the majority union, limiting the exercise of its trade union rights and particularly the right to collective bargaining. The complainant indicates that SIGEMITRAB filed an appeal challenging the approval of the new collective agreement.
11. 1077. The complainant indicates that SIGEMITRAB will also seek amparo remedies because there has been breach of both constitutional rights and rights established in the ordinary law. Furthermore, the General Secretary of FENASTEG had to bring retaliatory proceedings before the 11th Labour and Social Welfare Court.

B. The Government’s reply

1. 1078. In a communication of 12 March 2012, the Government provides information on the failure to pay the “recreation bonus” and to implement the plan for the inspection of farms and agricultural institutions, and the refusal to appoint the committee for the negotiation of the collective agreement on working conditions between the union of workers and the Ministry of Labour and Social Welfare.
2. 1079. The Government states that it sought information from the Human Resources Directorate and the Financial Administration Unit about progress in the transfer of funds to pay Ministry workers the recreation bonus of GTQ250. According to the workers, this was done in the first half of August 2011.
3. 1080. With regard to the failure to implement the plan of inspection visits to farms and agricultural institutions, the General Labour Inspectorate indicated that it was never the intention of the central authority to ignore a plan falling within the commitment undertaken by the State under ILO Convention No. 129. The inspections were carried out in September, October, November and the first week of December 2011. Inspectors were appointed to take part in the operation and in all 912 inspections were conducted in the departments of Quetzaltenango, Izabal, Alta Verapaz and Baja Verapaz. Once the work undertaken jointly with the Secretariat of Food and Nutrition Safety is finished, the labour inspectors Mr Víctor Manuel Dávila Rivera, Mr Shuvert Alí del Valle Rodríguez and Mr Néstor Estuardo de León Mazariegos will continue the implementation of the annual plan of visits to undertakings and/or farms throughout the country up until the prescribed dates. The Government further states that there have been contacts with the abovementioned inspectors and the complaint has been resolved through dialogue, the inspectors having decided to withdraw their claims there being no longer any reason to pursue them.
4. 1081. As to the committee to negotiate the collective labour agreement, the Government reports that it has already been set up and consists of the Vice-Minister for Financial Administration, the Director-General of Labour and an adviser from the Office of the Labour Ombudsman. It is now at work in the context of the collective dispute before the 11th Labour and Social Welfare Court.

C. The Committee’s conclusions

1. 1082. The Committee observes that this case concerns anti-union persecution and practices, a refusal to negotiate a list of demands, obstacles to exercise the right to collective bargaining and non-observance of provisions of a collective agreement in the Ministry of Labour and Social Welfare.

Non-observance of provisions of a collective agreement

1. 1083. With regard to the non-observance of provisions of the collective agreement in force, the Committee notes the complainant’s statement that the so-called “recreation bonus” of GTQ250, due at the end of April, has not been paid. The Committee notes that, according to the Government, the payment was made in the first half of August 2011. It will therefore not pursue its examination of this allegation.

Refusal to negotiate a list of demands and obstacles to exercise the right to collective bargaining

1. 1084. As regards the obstacles to the exercise of the right to collective bargaining arising from the signing of a collective agreement with minority unions in the Ministry, the Committee notes that the complainant states that: (1) the collective agreement in force at the material time (up to 17 May 2011) provided that demands relating to labour disputes shall be addressed with the union that signed the agreement, and that this was not done; (2) the Ministry of Labour and Social Welfare has recognized and authorized two groups of workers to discuss wage increases and job reclassification; (3) the law is quite clear that any economic and social gains are to be negotiated with the union having the largest membership, that in the case of the Ministry of Labour this is SIGEMITRAB; (4) on 20 October 2011 a collective agreement was signed between the Ministry of Labour and Social Welfare and the two minority unions that exist side by side in the Ministry, namely: SITRAMITRAPS and the Trade Union of Workers of the Ministry of Labour and Social Welfare; and (5) SIGEMITRAB brought retaliatory proceedings to challenge the approval of the new collective agreement. Noting that in its observations the Government has not questioned the representativeness of SIGEMITRAB, the Committee expects that the Government will embark on negotiations with the majority union and requests it to keep the Committee informed in this regard. It regrets that the Government has not sent its observations on the allegation that negotiations were held and collective agreements signed with minority unions, as a result of which, according to the complainant, SIGEMITRAB’s position was weakened. The Committee requests the Government to provide its observations in this regard.
2. 1085. As regards the setting up of the negotiating committee to discuss a new collective agreement, the Committee notes that, according to the complainant: (1) a collective dispute about economic and social matters arising from the refusal to negotiate a new collective agreement is being heard by the 11th Labour and Social Welfare Court; (2) the Ministry of Labour and Social Welfare requested direct negotiations; and (3) the Minister of Labour and Social Welfare delayed setting up the negotiating committee by filing an amparo appeal in order to hold up the court proceedings. The Committee notes that the negotiating committee has already been set up and consists of the Vice-Minister for Financial Administration, the Director-General of Labour and an adviser from the Office of the Labour Ombudsman, and is in the process of negotiating in the context of the collective dispute being heard by the 11th Labour and Social Welfare Court. The Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement: moreover, genuine and constructive negotiations are a necessary component to establish confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. The Committee expects that the negotiations will be conducted without further delay and asks the Government to keep it informed of the outcome thereof and the settlement of the collective dispute being heard by the 11th Labour and Social Welfare Court.

Anti-union persecution and practices

1. 1086. With regard to the alleged anti-union persecution and practices, the Committee notes that the complainant states that: (1) the Ministry set up a committee consisting of three labour inspectors – who are also trade union officials – and approved an annual plan of inspection visits to farms and agricultural institutions, which has not been implemented; (2) the head of the General Labour Inspectorate obstructed the plan by consistently slandering and stigmatizing the labour inspectors who hold trade union office; and (3) it requests the Minister to implement in full the plan he himself authorized, as failure to do so will perpetuate the discrimination against the labour inspectors who hold trade union office in SIGEMITRAB, namely Mr Shuvert Alí del Valle Rodríguez, Mr Víctor Manuel Dávila Rivera, and Mr Néstor Estuardo de León Mazariegos. The Committee notes the Government’s response to the effect that: (1) it was never the intention of the central authority to disregard a plan falling within the commitment undertaken by the State under ILO Convention No. 129; (2) the inspection visits were implemented in September, October, November and the first week of December 2011; (3) there have been contacts with the abovementioned labour inspectors and the complaint they submitted has been resolved through dialogue; they have stated their intention to withdraw their claims since there are no longer any grounds for pursuing them. The Committee asks the complainant organization to confirm that the complaint has been withdrawn following the settlement.
2. 1087. With regard to the disciplinary proceedings and the other court proceedings the complainant refers to as reprisals against the trade union activity of the General Secretary of SIGEMITRAB, who is also Secretary of the complainant organization, the Committee regrets that the Government has not responded and requests it to send its observations on these matters.

The Committee’s recommendations

1. 1088. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that in its observations the Government has not questioned the representativeness of SIGEMITRAB, the Committee expects that the Government will initiate negotiations with the majority union and requests it to keep the Committee informed in this regard. It also asks the Government to send it observations on the allegation that negotiations were held and collective agreements concluded with minority unions, as a result of which, according to the complainant, SIGEMITRAB’s position was weakened.
   • (b) With regard to the setting up of a negotiating committee to discuss a new collective agreement, the Committee expects that the negotiations will be conducted without further delay and asks the Government to keep it informed of the outcome thereof and the settlement of the collective dispute now before the 11th Labour and Social Welfare Court.
   • (c) With regard to the alleged anti-trade union persecution and practices in the context of the annual inspection plan of the labour inspectorate, the Committee asks the complainant organization to confirm that the claim has been withdrawn following the agreement reached.
   • (d) With regard to the disciplinary proceedings and other court proceedings referred to by the complainant organization as reprisals for the trade union activity of the General Secretary of SIGEMITRAB, who is also Secretary of the complainant organization, the Committee regrets that the Government has not responded and requests it to send its observations in this regard.