Report in which the committee requests to be kept informed of development - Report No 392, October 2020

Case No 2869 (Guatemala) - Complaint date: 06-JUN-11 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: dismissal of trade union leaders following the re-establishment of the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers of the companies belonging to the TOMZA Group

1. 621. The Committee last examined this case (presented in June 2011) at its June 2014 meeting when it presented an interim report to the Governing Body [see the 372nd Report, approved by the Governing Body at its 321st session (June 2014), paras 286 to 296]. Link to previous examination.
2. 622. The Government sent observations in communications dated 22 July 2015 as well as 6, 28 and 30 May 2019, 31 January 2020, 4 February and 10 September 2020.
3. 623. 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. 624. In its previous examination of the case in June 2014, the Committee made the following recommendations [see 372nd Report, para. 296]:
   • (a) Highlighting that in one of the two proceedings in relation to this case, which had been shelved without its withdrawal by the complainant, a reinstatement order had been issued at first instance in respect of nine dismissed trade union leaders and that, in its previous examination of the case, the Committee had requested the Government to enforce that order, the Committee requests the Government to transmit the corresponding decisions as a matter of urgency and to provide all the necessary details regarding the grounds for shelving the abovementioned cases; and
   • (b) The Committee requests the Government to ensure that the pending judicial proceedings in relation to this case are concluded without further delay and, while awaiting the final judicial decisions, to ensure the immediate provisional reinstatement of the workers in respect of whom reinstatement orders that have not been shelved were issued at first instance. The Committee requests the Government to urgently inform it in this regard.

B. The Government’s reply

1. 625. In its various communications, the Government has provided information on the different legal proceedings in relation to this case. Its most recent communication of 4 February 2020 provided a consolidated and updated version of the above information. Regarding the process of reinstatement of the nine dismissed trade union leaders (subparagraph (a) of the recommendations), in the context of collective social and economic action No. 01088 2011 131, filed by the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers, the Government reports that: (i) one trade union leader fully withdrew his claim; and (ii) the situation of the other eight leaders was examined in judicial proceedings before the Constitutional Court (Case No. 01087-2011-154), culminating in decision No. 1755-2019 regarding an appeal for the protection of constitutional rights, of 26 November 2019. The Government has provided a copy of this decision, which declared the appeal brought to be inadmissible.
2. 626. The Government also indicates that, in relation to subparagraph (b) of the Committee’s recommendations regarding the 16 individuals involved in this case, six were reinstated, two received a reinstatement order but did not present themselves, six withdrew from the proceedings and the requests for reinstatement of the final two individuals (Mr Hilario Revolorio Colocho and Mr Juan Manuel Alvarado de Paz) were declared inadmissible by the Fifth Court of Labour and Social Welfare.

C. The Committee’s conclusions

1. 627. The Committee recalls that the case under examination refers to allegations of anti-union dismissals following the re-establishment of a trade union and the failure to implement a 2011 court reinstatement order.
2. 628. The Committee takes note of the Government’s observations regarding the status of the various proceedings initiated since 2011 in relation to the events to which this complaint refers. The Committee notes the Government’s indication regarding subparagraph (b) of the Committee’s recommendations that, of the 16 individuals involved in this case, six were reinstated, two received a reinstatement order but did not present themselves, six withdrew from the proceedings and in two cases the request for reinstatement was declared inadmissible.
3. 629. With regard to the reinstatement of the nine trade union leaders to which subparagraph (a) of the Committee’s recommendations refers, in the context of collective social and economic action No. 01088-2011-131, the Committee notes the Government’s specific reference to the Constitutional Court decision of 26 November 2019 (appeal for the protection of constitutional rights), which provides a timeline of the numerous related judicial proceedings. It can be gathered from this decision that: (i) Hugo Fernando Gallardo Pérez, Luis Alfredo Barrios Chavarría, Rigoberto Sagastume Juárez and Filiberto Pineda Carías, among others, initiated judicial proceedings for reinstatement against their employer, which were declared admissible by the trial judge, in a decision of 2 June 2011; (ii) a subsequent decision of 5 July 2011 partially amended this decision, declaring the requests for reinstatement to be inadmissible; (iii) dissatisfied with the result, those concerned submitted an appeal and the judge of the Fourth Labour and Social Welfare Judge of the Department of Guatemala declined to process the appeal on the grounds that the time limit for filing it had been exceeded; (iv) a remedy of complaint (ocurso de hecho) was filed against that decision, which was dismissed by the First Chamber of the Labour and Social Welfare Court of Appeal on the same grounds (late submission); (v) the Fifth Labour and Social Welfare Judge of the Department of Guatemala issued a ruling on 23 March 2017 once again ordering the reinstatement of the complainants and the payment of their lost wages; (vi) both the complainants (alleging an erroneous calculation of the payment of their benefits) and the employer (contesting the decision on the merits) filed an appeal against the latter ruling; the Third Chamber of the Labour and Social Welfare Court of Appeals dismissed the appeal filed by the complainants and upheld the appeal filed by the employer, considering that the only way to nullify the partially amended decision of 2011 was through an appeal, which was rejected owing to late submission; and (vii) finally, the Constitutional Court declared the appeal inadmissible in a decision of 26 November 2019, stressing that the applicants were able to freely access the courts but had made procedural errors.
4. 630. The Committee is bound to note the very high number of proceedings and appeals related to the present case, as well as the procedural complexity and legal uncertainty that lasted until the end of 2019 with respect to dismissals dating back to 2011. The Committee notes that on two occasions (decision at first instance of 2 June 2011 and decision of the Fifth Labour and Social Security Judge of 23 March 2017), the complainants were declared to have been reinstated but that, for procedural reasons (untimeliness), this reinstatement was ultimately denied, as reflected in the Constitutional Court’s decision of 26 November 2019 to which the Government refers.
5. 631. In view of the above, and particularly the length of the above-mentioned judicial proceedings, the Committee is once again bound to recall that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1139]. The Committee requests the Government to provide information on any judicial proceedings that are still pending in relation to collective social and economic action No. 01088-2011-131.
6. 632. In general terms, the Committee once again notes the repetitive nature of the cases examined concerning Guatemala in which it has been bound to note the slowness of legal proceedings related to allegations of anti-union dismissals (see Case No. 3062, 383rd Report, October 2017, paragraphs 365 to 367; Case No. 2948, 382nd Report, June 2017, paragraphs 375 to 378; Case No. 2989, 372nd Report, June 2014, paragraph 316; Case No. 2869, 372nd Report, June 2014, paragraph 296). In view of the above, the Committee once again urges the Government, in consultation with the social partners, to carry out a thorough revision of the procedural rules of the relevant labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti union discrimination. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 633. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee requests the Government to provide information on any judicial proceedings that are still pending in relation to collective social and economic action No. 01088-2011-131.
   • The Committee once again urges the Government, in consultation with the social partners, to carry out a thorough revision of the procedural rules of the relevant labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.