Informe definitivo - Informe núm. 397, Marzo 2022

Caso núm. 3221 (Guatemala) - Fecha de presentación de la queja:: 30-MAY-16 - Cerrado

Allegations: The complainant denounces the proceedings brought by various public authorities against the collective agreement governing the working conditions of civil servants in the Congress of the Republic

1. 384. The complaint is contained in a communication dated 30 May 2016 submitted by the Union of Workers at the Congress of the Republic (SINTRACOR).
2. 385. The Government sent its observations on the allegations in communications dated 4 November 2016, 7 and 19 April 2017, 16 December 2019, 29 March and 7 May 2021, as well as 28 January 2022.
3. 386. 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, 1948 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 387. According to the complainant, after the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the Office of the Attorney General publicly expressed their general hostility towards collective bargaining in the public sector in 2015, in 2016 the Office of the Attorney General brought a series of proceedings directed at the collective agreement on working conditions signed by the Congress of the Republic and SINTRACOR. The complainant alleges specifically that: (i) the Office of the Attorney General sent a document with no legal basis to the President of the Congress and several social media sites, entitled “Analysis of the Negotiation, Signing and approval Procedure of the Collective Agreement on Working Conditions Signed by the Legislative Body and the Union of Workers of the Congress of the Republic of Guatemala”; and (ii) the Office of the Attorney General and the Office of the Comptroller General filed a criminal complaint that attempted to characterize the annual 10 per cent wage increase for all workers in the legislative body contained in the aforementioned collective agreement as a crime, which was the reason the leaders of SINTRACOR were summoned before the Public Prosecutor’s Office.
2. 388. In addition, the complainant notes that: (i) the Political Constitution of the Republic of Guatemala guarantees the rights and socioeconomic improvements of workers through the application of the favourability principle, in accordance with the ILO Conventions; (ii) there is legislation recognizing the right to organize and to collective bargaining for civil servants; and (iii) the Congress of the Republic has recognized the right of its workers to an annual wage increase by signing agreements No. 07-2002 and No. 09-2003 on the matter.
3. 389. The complainant declares that the most recent collective agreement on working conditions that it signed (hereafter “the collective agreement”) was approved on 21 April 2005 and came into force for a period of three years. They state that all the legally established procedures for a new round of collective bargaining were carried out before its expiration in 2008, but that since the Congress never ruled on the matter, they were legally obliged to report it to the labour courts, which is why its validity was extended for another three years. They note that this agreement, which was later similarly extended twice more, was due to expire on 21 April 2017.
4. 390. According to the complainant, the State of Guatemala, through the Office of the Attorney General and the President of the Congress, has decided to incite trade union persecution and put at risk the right to organize and the right to collective bargaining by publicly showing supposed irregularities in the ratification of collective agreements on working conditions, including their own. They maintain that, as a result of this, the leaders and members of SINTRACOR are being coerced, threatened and harassed in their place of work. The complainant states that, in the face of the aforementioned facts, they have tried to prioritize dialogue, showing a good faith effort to resolve the dispute within the framework of the legal order, but that the Congress chose to call attention to it with a view to discrediting it in the court of public opinion.

B. The Government’s reply

1. 391. The Government sent the observations of the Congress relating to the allegations in the present case in a communication dated 4 November 2016. The Congress explains that there are three trade unions operating there, including the complainant organization, which is the largest. It also confirms that a collective agreement was signed with the complainant, that the agreement has been extended three times and that it is in force until 20 April 2017. The Congress maintains that this agreement demonstrates its respect for the right to organize and the right to collective bargaining, and that it has at no point violated any of the rights contained in the ILO Conventions.
2. 392. The Congress also states that it has complied with its obligations to the Office of the Comptroller General, the State auditing body, since its recommendations must be respected and the findings of the relevant audits acted upon. It explains that the calculation of the 10 per cent wage increase has recently been corrected, which should be based on the workers’ base salary, as established in article 23 of the collective agreement and in accordance with the determination of the Office of the Comptroller General in the audit of the 2015 fiscal year.
3. 393. The Congress states that, as a result of the findings related to that calculation, the Office of the Comptroller General imposed sanctions amounting to a total of 16,379,820 quetzals on those determined to be responsible for the incorrect implementation of the wage increase, which included members of the Executive Council of the Congress, its Director General, its Financial Director and its Personnel Manager, as well as the Secretary General of the complainant organization.
4. 394. The Congress also reports that article 10 of the collective agreement provides an internal social dialogue mechanism for resolving disputes that arise in the delivery of services. They explain that, faced with the concerns of the Office of the Comptroller General that were brought to light during the government auditor’s inspection, as an employer they continued to hold the view that if a competent court states that the workers have a right, the Congress will comply with such a legal ruling and use that in support of its actions to the Office of the Comptroller General.
5. 395. In that regard, the Congress states that various proceedings and constitutional appeals brought by the trade unions representing its workers are currently being dealt with by the courts. However, they note that, to date, there has been no legal ruling protecting the workers’ wage increase based on total salary rather than base salary as established in the collective agreement.
6. 396. On the other hand, the Congress states that the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG) have brought anti-corruption cases against civil servants, which has led to requests for preliminary proceedings, loss of immunity resolutions and seizure orders against some of its workers. This demonstrates the need and demand for transparency in the management of public spending by the public authorities of the State. The Congress stresses that it has complied with the recommendation of the Office of the Comptroller General and that the proper administration of public financial resources is circumscribed by law.
7. 397. In its communication dated 7 April 2017, the Government provides the observations of the Office of the Attorney General, which states that it is constitutionally bound to provide legal advice and consulting services to State bodies and entities, and to represent and defend State interests. They also state that, based on article 34 of Congressional Decree No. 512, once the Attorney General becomes aware, by whatever means, of actions or facts that affect or could affect the nation’s interests, they must contact the relevant ministry, body or entity, laying out the facts and suggesting how to proceed.
8. 398. The Office of the Attorney General states that in that regard, in an opinion dated 29 January 2016 sent to the President of the Congress, it analysed the negotiation, signing and approval procedure of the collective agreement, without discrediting or affecting directly or indirectly collective bargaining or the rights protected by the ILO Conventions. The Office of the Attorney General specifies that the aforementioned opinion recommended carrying out an analysis of the benefits that had been authorized via collective bargaining, as well as to initiate any legal proceedings deemed necessary and to regulate a number of aspects of the direct negotiations committee for collective agreements on working conditions in the public sector.
9. 399. The Office of the Attorney General also reports that they filed a complaint with the Public Prosecutor’s Office (No. MP01-2016-10639) against the civil servants and former civil servants who, during the aforementioned negotiation, signing and approval of the collective agreement, failed to comply with the relevant norms and committed a series of irregularities (relating to, among other things: the failure to identify available funds to finance the benefits agreed upon; the excessive nature of certain benefits; the violation of the equality principle). They emphasize that this complaint is not directed towards members of the complainant organization, or towards union leaders
10. 400. In its communication dated 19 April 2017, the Government reports that a mediation session was held on 6 March 2017 between the complainant organization and the Congress, and that there is good communication between the parties. They report that they will soon be negotiating a new collective agreement on working conditions and that the complainant is even considering the possibility of dealing with the subject of the complaint in this case in the context of those negotiations
11. 401. After having communicated the position of the Office of the Attorney General, the Government concludes that in this case, the dispute derives from an erroneous interpretation of article 23 of the collective agreement, which established an annual 10 per cent wage increase for workers in the Congress. They maintain that the situation must be resolved by the competent authorities, emphasizing that there has been no demonstrable violation of ILO Conventions.
12. 402. In its communication dated 7 May 2021, the Government reports that it had decided to request that complaint No. MP01-2016-10639 be thrown out, as there are other legal mechanisms for challenging the validity of the agreement that had been signed and approved.
13. 403. In a communication dated 28 January 2022, the Government sent information from the Public Prosecutor’s Office indicating that the criminal proceedings brought against the Executive Council of the Congress that signed the collective agreement in 2005 had been thrown out.

C. The Committee’s conclusions

1. 404. The Committee takes note that this case concerns proceedings brought by the Office of the Attorney General and the Office of the Comptroller General in 2016 relating to the collective agreement on working conditions signed by the Congress of the Republic and SINTRACOR in 2005 and extended three times.
2. 405. The Committee takes note that the complainant alleges that: (i) in contravention of ILO Conventions and of domestic legislation, the Office of the Attorney General has questioned the validity of the aforementioned agreement in the country’s mass media; and (ii) has brought a number of criminal proceedings relating to the negotiation, signing and approval of the collective agreement, as a result of which the leaders of SINTRACOR were called to appear before the Public Prosecutor’s Office.
3. 406. The Committee takes note of the position of the Congress of the Republic submitted by the Government, according to which: (i) in accordance with the findings of the Office of the Comptroller General in its audit corresponding to the fiscal year 2015, the calculation of the 10 per cent wage increase has been corrected, which should be based on the base salary of workers in the Congress, as established in article 23 of the collective agreement, and not on total remuneration; (ii) the Office of the Comptroller General imposed sanctions amounting to a total of 16,379,820 quetzals on those determined to be responsible for the incorrect implementation of the wage increase, which included members of the Executive Council of the Congress, several high-ranking officials from that institution, as well as the Secretary General of the complainant organization; and (iii) although SINTRACOR has brought various legal proceedings on the matter, to date there have been no legal rulings finding that the workers’ wage increase should be calculated on the basis of the total salary rather than just on the base salary.
4. 407. The Committee also takes note of the position of the Office of the Attorney General, sent in by the Government, which states that: (i) it has a mandate to ensure respect for the rule of law; (ii) it found that there had been a series of irregularities in the negotiation, signing and approval of the collective agreement signed in 2005 by the Congress of the Republic and SINTRACOR, relating to, among other things: the failure to identify available funds to finance the benefits agreed upon; the excessive nature of certain benefits; and the violation of the equality principle; and (iii) as a result of this, criminal proceedings were brought against various people responsible and high-ranking officials in the Congress, but never against the leaders of SINTRACOR.
5. 408. Lastly, the Committee takes note of the information provided by the Government, according to which: (i) this case is primarily the result of an erroneous interpretation of article 23 of the collective agreement of the Congress of the Republic with regard to the base salary increase in that institution; and (ii) the criminal proceedings brought by the Office of the Attorney General with regard to the negotiation, signing and approval of the agreement were thrown out on 7 July 2021.
6. 409. The Committee duly notes these elements and observes that the first element raised by the present case relates to the audit carried out by the Office of the Comptroller General in 2015, according to which article 23 of the collective agreement had not been correctly implemented because the annual wage increase applicable to the workers in that institution had been calculated on the basis of their total salary rather than their base salary. In that regard, the Committee recalls that it has considered that disputes arising out of the interpretation of a collective agreement should be submitted to an appropriate procedure for settlement established either by agreement between the parties or by laws or regulations as may be appropriate under national conditions [see 383rd Report of the Committee, Case No. 3081, para. 431]. Noting that the interpretation of article 23 of the collective agreement is the subject of ongoing legal proceedings, the Committee will not pursue its examination of this allegation. The Committee observes nonetheless that, according to the information provided by the Congress of the Republic, the Office of the Comptroller General has imposed fines on those responsible for the implementation of the wage increase deemed to have been calculated incorrectly, including the Secretary General of SINTRACOR. The Committee recalls that it considers that although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 79]. On that basis, the Committee requests the Government to ensure, if it is indeed the case that sanctions have been imposed on the Secretary General of SINTRACOR, that these sanctions were handed down by a judicial authority with regard to facts unrelated to the exercise of legitimate trade union activity.
7. 410. With regard to the criminal proceedings brought by the Office of the Attorney General in 2016 relating to the negotiation, signing and approval of the 2005 collective agreement, the Committee takes note of: (i) the statement from the Office of the Attorney General that these proceedings were directed at leaders and high-ranking officials in the Congress of the Republic and not towards leaders or members of SINTRACOR; and (ii) the Government’s statement that the criminal proceedings were thrown out in a ruling dated 7 July 2021. While taking note of these elements, the Committee recalls that it has examined several recent cases that relate to legal challenges of public sector collective agreements in Guatemala. The Committee recalls that on those occasions, it had requested the Government: (i) to take all measures necessary to resolve the issues raised in relation to the content of the relevant collective agreements to the extent possible through collective bargaining [see 393rd Report, March 2021, Case No. 3179, para. 495]; and (ii) in consultation with the trade unions concerned, to take the measures required to ensure that collective bargaining procedures in the public sector follow clear guidelines which meet both the requirements of financial sustainability and the principle of bargaining in good faith [see 377th Report, March 2016, Case No. 3094, para. 345]. The Committee reiterates the importance of those recommendations in the context of the present case.
8. 411. Lastly, the Committee takes note of the complainant’s allegations regarding the supposed use of the mass media by the Office of the Attorney General to attack the collective agreement signed with the Congress of the Republic and the adverse consequences suffered by SINTRACOR, including threats and harassment in the workplace. The Committee observes in that regard that: (i) the complainant includes a series of press articles about the proceedings brought by the authorities relating to the collective agreement, some of which contain offensive references towards SINTRACOR or some of its members; (ii) the complainant does not provide evidence that the public authorities had an active role in the publication of these articles; and (iii) the Government has not provided its observations on this aspect of the complaint. Recalling that in the roadmap adopted in 2013, which remains in force, the Government committed to carry out a major awareness-raising campaign on freedom of association, the Committee trusts that the Government will take specific measures to promote a culture of respect for freedom of association and collective bargaining in the country’s media.

The Committee’s recommendations

1. 412. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure, if it is indeed the case that sanctions have been imposed on the Secretary General of SINTRACOR, that these sanctions were handed down by a judicial authority with regard to facts unrelated to the exercise of legitimate trade union activity,
   • (b) The Committee trusts that the Government will take specific measures to promote a culture of respect for freedom of association and collective bargaining in the country’s media.
   • (c) The Committee considers that this case does not call for further examination and is closed.