Effect given to the recommendations of the committee and the Governing Body - Report No 343, November 2006

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

1. 92. The Committee last examined this case at its June 2006 meeting [see 342nd Report, paras 567-583] and, on that occasion, the Committee requested the Government to ensure compliance with section 20 of the collective agreement applicable to the National Trade Union of Health Workers of Guatemala (SNTSG) (concerning union leave), and drew the Government’s attention to the fact that, in the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be judge and a party in the case, but rather that of an independent authority. The Committee also recalled that collective agreements must be binding on both parties, and urged the Government to take the necessary measures without delay to ensure compliance with section 21 of the collective agreement relating to the deduction of union dues for the SNTSG, including the establishment of the appropriate infrastructure.
2. 93. In a communication of 16 June 2006, the Government states that it had sent its observations on this case in a communication of 14 July 2005 and in a report for July-August of that year (these communications had not reached the Office). Concerning the allegations, the Government adds that the opinion issued by the General Labour Inspectorate of 2001 was contrary to the regulations governing the activity of public institutions, which cannot be evaded even in the presence of workers’ alleged acquired rights, since they are public interest regulations and hence their application is universal and mandatory. One of the most important of these regulations is the Organic Act respecting the budget, section 76 of which provides that “no personal payments shall be made that are not earned, neither shall payment be made for services not rendered”. As it happened, the General Labour Inspectorate of 2001 failed to take a public interest regulation into account. However, that was a technical-legal opinion and is not binding even on the General Labour Inspectorate itself. That opinion contained an interpretation to the effect that trade union officials should not work at all during their term of office.
3. 94. The Government states that at the request of the employer side, the General Labour Inspectorate issued a new opinion on 20 December 2004 concerning trade union leave in the Ministry of Public Health and Social Welfare, taking account of public interest regulations and incorporating the collective agreement on terms and conditions of employment, interpreted together with ordinary labour law, as they complement one another. According to the Government, the opinion of 2004 does not in any way infringe the principles of freedom of association and collective bargaining, much less represent official interference in matters within the sole competence of trade unions; rather, it is consistent with the legal mandate under which the General Labour Inspectorate has the duty to respond to consultations on the part of workers, employers and trade unions concerning the manner in which the legal provisions within its remit are to be applied. Neither does it mean that a previous decision has been revoked, as the complainants state, since, as already pointed out, it is not a decision but rather an opinion that is not binding on the parties to the employment relationship, much less on the General Labour Inspectorate itself. The fact that the document at issue in the complaint has the nature of an opinion and not a decision is confirmed by the complainants themselves since, if it had been a decision (an administrative act), it could be challenged through the procedures laid down in national legislation, which these persons did not do, but took their case directly to an international body.
4. 95. The Committee notes this information. The Committee requests the Government to keep it informed on the implementation of the collective agreement applicable to the SNTSG, in particular as regards the grant of trade union leave and the deduction of union dues.