Definitive Report - Report No 382, June 2017

1. 380. The Committee last examined this case at its November 2014 session, when it presented an interim report to the Governing Body [see 373rd Report, paras 360–368, approved by the Governing Body at its 322nd Session (November 2014)].
2. 381. The Government sent its observations in communications dated 23 January 2015 and 7 March 2017.
3. 382. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Right to Organise and Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 383. In its previous examination of the case, in November 2014, the Committee made the following recommendations on the questions still pending [see 373rd Report, para. 368]:
   • (a) The Committee regrets that, despite the time which has elapsed since the previous examination of the case in March 2013, the Government has not submitted the requested information and observations, despite the Committee having made two urgent appeals to it.
   • (b) The Committee once again requests the Government to keep it informed promptly of the payment of back wages to the workers of the municipality of Jalapa following their reinstatement.
   • (c) The Committee once again urges the Government to hold an independent judicial inquiry without delay into the alleged anti-union acts, death threats and attempted murder of members of the Trade Union of Workers of the Municipality of Pajapita, and to take the necessary measures to guarantee the safety of the persons threatened and to re-establish the climate of trust so as to enable members of the abovementioned union to engage in union activities. The Committee once again requests the Government to inform it without delay of the measures taken in this regard and of the outcome of the inquiry.
   • (d) The Committee firmly expects that the commitments made by the Government of Guatemala, through the signature of the Memorandum of Understanding of 26 March 2013, will be translated into concrete results in relation to the allegations in this case.
   • (e) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 384. In its communication of 23 January 2015, concerning the Trade Union of Workers of the Municipality of Pajapita, the Government states, with respect to the death threats allegedly received via telephone as from March 2012 by Ms Guadalupe Floridalma de León and Ms Marili Blanca Stzep Ramírez (the union’s General Secretary and Finance Secretary, respectively) that information was requested from the public prosecution service which provided the witness statements in which the two complainants had declined to pursue criminal or civil prosecution. The Government further notes that the Special Investigation Unit for Crimes against Trade Unionists has issued the following decision: “The public prosecution service … hereby decides: (i) to dismiss the complaint concerning the crime of threats against Ms Guadalupe Floridalma de León and Ms Marili Blanca Stzep Ramírez since the complainants have stated that they do not wish the public prosecution service to pursue the investigation; (ii) to proceed in accordance with article 117 of the Code of Criminal Procedure; and (iii) to close the case.
2. 385. Concerning the complainant organization’s allegation that an attempt was made on the life of the union’s Labour and Disputes Secretary, Mr Orlando Joaquín Vásquez Miranda, on 5 June 2012, the Government states that since no complaint was filed with the public prosecution service – and therefore no investigation was conducted – there are no grounds for attempted identification of the perpetrators.
3. 386. In its communication of 7 March 2017, the Government provides information on the payment of back wages to the workers of the municipality of Jalapa following their reinstatement. At the outset, it reports that the case has been referred to the Tripartite Committee for the Settlement of Freedom of Association and Collective Bargaining Disputes before the ILO (hereinafter “the Dispute Settlement Committee”) so that the issues that prompted the complaint can be addressed; it explains that this mediation procedure was delayed by a change in the municipal authorities in January 2016. With respect to the mediation sessions that took place, the Government reports, among other things, that:
   • (i) the union’s representatives have provided the Dispute Settlement Committee with documents showing that all of the municipal workers who were dismissed have been reinstated and that they have yet to receive their back wages and other benefits;
   • (ii) the workers have been given access to the municipal health clinics so that they may receive care until the issue of the payment of outstanding contributions to the Guatemalan Social Security Institute is resolved;
   • (iii) pursuant to the Budget Act, the town’s mayor has undertaken to make provision for payment of the back and unpaid wages under the 2017 budget. Furthermore, in November 2016, the independent mediator and the technical secretariat of the Dispute Settlement Committee attended a town meeting with several municipal authorities in order to review the budget lines and verify provision for the aforementioned payments;
   • (iv) in order to limit municipal employees to the required number, the local authorities have offered the workers a voluntary retirement plan. It has been learned that, with the support of the town’s unions, some 140 people have accepted the plan and that the town has already made several payments to them;
   • (v) the municipal authorities have signed an agreement establishing the Municipal Employee Benefit Plan, under which workers’ back contributions will be paid;
   • (vi) with respect to the restructuring of the town’s workers, five meetings of representatives of the municipal authorities and the trade unions were held in 2016 in order to evaluate the municipality’s workers and to decide jointly which of their contracts would not be renewed for 2017. In order to ensure municipal workers’ enjoyment of the right to work, the town council decided to establish municipal enterprises, which will assume the labour liabilities in respect of those workers; and
   • (vii) the union and the municipal authorities have signed a collective agreement on working conditions, which is pending approval by the Ministry of Labour and Social Welfare.
4. In the light of the foregoing, the Government concludes that: (i) all of the workers who were dismissed have been reinstated; (ii) the town’s three trade unions are operating normally and are pursuing their objectives; (iii) there is a commitment and, in fact, a plan for meeting the obligation to pay back wages; (iv) social dialogue, dispute resolution and collective bargaining in the town have been strengthened; and (v) this case is clear proof that the Dispute Settlement Committee is effective when the parties concerned have the will to resolve disputes.

C. The Committee’s conclusions

1. 387. The Committee recalls that this case concerns allegations both of death threats and attempted murder against members of the Trade Union of Workers of the Municipality of Pajapita and of the mass dismissal of workers, in violation of the provisions of a collective agreement, in the municipality of Jalapa.
2. 388. With regard to the allegation that Ms Guadalupe Floridalma de León and Ms Marili Blanca Stzep Ramírez (General Secretary and Finance Secretary, respectively, of the Trade Union of Workers of the Municipality of Pajapita) received death threats via telephone as from March 2012, the Committee notes that that the Government has requested information from the public prosecution service, which reports that the two women have declined to pursue criminal or civil prosecution.
3. 389. With regard to the allegation that an attempt was made on the life of a union leader, Mr Orlando Joaquín Vásquez Miranda, the Committee takes note of the Government’s statement that no complaint was filed with the public prosecution service. The Committee also notes that, according to the complainant organization, no complaint was filed for fear of future reprisals. On this point, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 44]. Noting that the failure to investigate Mr Vásquez Miranda’s situation could both result in the impunity of whoever made the death threats and place his life at risk and taking into account the specific circumstances and climate in the country, the Committee urges the Government to contact Mr Vásquez Miranda in order to determine whether he requires protection measures.
4. 390. With regard to the payment of back wages to the workers of the municipality of Jalapa following their reinstatement, the Committee takes note of the progress achieved within the framework of the Dispute Settlement Committee but regrets that, more than four years after the workers’ reinstatement, the issue of the payment of their back wages and related benefits has yet to be resolved. Noting that the town’s mayor has undertaken to make provision for payment of the back and unpaid wages under the 2017 budget, the Committee trusts that the back wages of the workers in question will, in fact, be paid in 2017.
5. 391. The Committee takes note of the Government’s report concerning the initiatives taken within the framework of the Dispute Settlement Committee, such as the voluntary retirement plan and restructuring programme for municipal workers, and trusts that the principles of freedom of association will be fully respected during their implementation.