Effect given to the recommendations of the committee and the Governing Body - Report No 393, March 2021

Effect given to the recommendations of the committee and the Governing Body

1. 19. The Committee last examined this case at its meeting in November 2012 and, on that occasion, made the following recommendations on the issues that were still pending [see 365th Report, November 2012, para. 1088]:
   • (a) noting that in its observations the Government has not questioned the representativeness of the General Trade Union of Employees of the Ministry of Labour and Social Welfare (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plan of the labour inspectorate, the Committee asks the complainant organization to confirm that the claim has been withdrawn following the agreement reached, and
   • (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.
2. 20. In a communication dated 7 February 2013, the complainant organization: (i) denounced the failure to comply with the Committee’s recommendations; (ii) indicated that no agreement had been reached concerning the alleged persecution and anti-union practices, and (iii) stated that SIGEMITRAB officials continued to be subject to constant discrimination and restrictions on their activities, for which reason the trade union had been obliged to bring retaliatory proceedings before the 11th Labour and Social Welfare Court.
3. 21. In a communication of 8 December 2017, the Government indicates that in a ruling of 22 July 2016, the 7th Labour and Social Welfare Court: (i) confirmed that the total number of SIGEMITRAB members was not greater than the number of workers who were members of the General Trade Union of Workers of the Ministry of Labour and Social Welfare (SITRAMITRAPS) and the 20 October Trade Union of Workers of the Ministry of Labour and Social Welfare (20 October Trade Union); and (ii) dismissed the application for a declaration of nullity of the Collective Agreement on Working Conditions concluded by the Ministry of Labour and Social Welfare, SITRAMITRAPS and the 20 October Trade Union. The Government also informs that the retaliatory proceedings brought by Mr Néstor Estuardo de León Mazariegos, Secretary General of the SIGEMITRAB, were declared as non-receivable, pursuant to a ruling of 23 August 2012 of the 11th Labour and Social Welfare Court, a decision confirmed by a ruling of 5 June 2013 of the Appeal Court of Labour and Social Welfare.
4. 22. In a communication dated 21 January 2021, the Government states that a Collective Agreement on Working Conditions was concluded on 28 September 2018 between the Ministry of Labour and Social Welfare, on the one hand, and SITRAMITRAPS, SIGEMITRAB and the 20 October Trade Union, on the other. This agreement was homologated on 9 October 2018 and is still in force. As regards the disciplinary process and other legal actions mentioned by the complainant organization as alleged reprisals for the trade union activity of Mr Néstor Estuardo de León Mazariegos, the Government indicates that: (i) various disciplinary proceedings were indeed brought against Mr De León Mazariegos for breaching duties established in the Regulations under the Civil Service Act; and (ii) as a result of the disciplinary proceedings, Mr de León Mazariegos was punished with five days without pay in August 2019. The Government also informs that Chapter VIII of the new collective agreement signed in 2018 with the three unions present in the institution, establishes the disciplinary regime, which has improved the process with regard to the right of defence, due process, presumption of innocence, as well as the right to review the disciplinary measures imposed on the public servants of the Ministry of Labour and Social Welfare. Finally, the Government emphasizes that no information has been provided during the past 18 months in relation to this case which was examined by the Committee in November 2012.
5. 23. In a communication of 28 January 2021, the Government informs that, as regards the collective dispute brought before the 11th Court of Labour and Social Welfare, on 16 August 2012 a ruling was issued stating the collective dispute was without substance. The Government indicates also that, on 5 February 2013, this ruling was confirmed by the Jurisdictional Chamber following an appeal lodged by SIGEMITRAB.
6. 24. The Committee takes note of this information. In particular, it notes with satisfaction that a new collective agreement has been concluded between the Ministry of Labour and Social Welfare, SIGEMITRAB and the other two trade unions present within the Ministry. As regards the invocation of the 18-month period without additional information, the Committee observes that, following its last examination of the case in 2012, the complainant organization provided in 2013 additional information on the alleged failure to comply with the recommendations. After having sent a first reply in 2017, the Government sent supplementary information in 2021, for which reason the Committee is now examining the pending issues. Taking into account the conclusion of the above-mentioned collective agreement with all the trade unions present in the Ministry and the court decisions handed down in relation to the pending matters, the Committee notes that all the issues appear to have been resolved. Consequently, the Committee considers that the case is closed and will not pursue its examination of this case.