Interim Report - Report No 348, November 2007

724. The Committee last examined this case at its November 2006 meeting [see 343rd Report, paras 824–835] and submitted an interim report to the Governing Body.

1. 725. The National Federation of Trade Unions of State Employees of Guatemala (FENASTEG) sent additional information in a communication dated 27 November 2006. The Union of Workers of the National Civil Service Office (SONSEC) presented new allegations in a communication dated 29 November 2006. The Government sent partial observations in communications of 5, 8, 21 and 24 November 2006 and 9 January, 22 March, 14 May, and 1 and 7 June 2007.
2. 726. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 727. At its November 2006 meeting, the Committee made the following recommendations [see 343rd Report, para. 835]:
2. (a) As regards the socio-economic dispute at the Chinautla Town Hall that is before the judicial authority, the Committee once again requests the Government to inform it of any decisions handed down by the conciliation and arbitration court regarding the 14 dismissed union members (who, according to the Government, were still working at that time) and union leader Marlon Vinicio Avalos.
3. (b) The Committee once again requests the Government to take measures to promote collective bargaining in Chinautla Town Hall and to supply information in this regard.
4. (c) The Committee once again requests the Government to ensure that the civil service bill that emerges from the consultation process is fully compatible with Conventions Nos 87 and 98 and to send a copy of the bill so that the Committee can assess its compatibility with the principles of freedom of association.
5. (d) As regards the alleged process of reorganization of the departments of the Ministry of Education with the possible elimination of posts with the aim of destroying the union that operates there, the Committee notes the information from the Government to the effect that the executive committee of the Trade Union of Workers of the Department of Education of Guatemala (SITRADDEG) has brought an action before the judicial authority against the State of Guatemala, expects that the judicial authority will soon issue a ruling, and requests the Government to keep it informed of the final outcome of the proceedings.
6. (e) As regards the allegations concerning the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material as a result of an allegedly illegal reorganization, without consultation, ordered by the Ministry of Education, and the action taken to dismiss all members of the union’s executive committee, the Committee, noting that FENASTEG communicated the full names of the affected workers in its communication of 3 November 2005, which were transmitted to the Government and are given at the beginning of this case, requests the Government to send its observations concerning these allegations without delay.
7. (f) As regards the alleged action taken by the Ministry of Education to dismiss all members of the executive committee of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material, the Committee requests the complainant organization (FENASTEG) to indicate the court dealing with this action.
8. (g) The Committee, deeply regretting that since the start of this case, no observations have been communicated by the Government concerning the following allegations: (1) the Directorate General for Migration refused to negotiate the collective agreement and to reinstate union leader Mr. Pablo Cush with payment of lost wages and is taking measures to dismiss union leader Mr. Jaime Reyes Gonda without court authorization; and (2) the Directorate General for Migration refused to set up the mixed (joint) committee as set out in the collective agreement, urges the Government to reply without delay.
9. B. Additional information provided
10. by the complainants
11. 728. In its communications dated 27 and 29 November 2006, the SONSEC and FENASTEG allege that the authorities of the National Civil Service Office (ONSEC) have violated the collective agreement on working conditions which governs the freedom to engage in trade union activities and which stipulates in section 14: “Freedom to engage in trade union activities. ONSEC recognizes that the members of the executive committee and the advisory council of SONSEC have the right under law to engage in trade union activities during normal working hours. Furthermore, it undertakes to enforce all the provisions and principles relating to freedom of association set forth in the Constitution of the Republic of Guatemala and other related legislation, as well as the relevant international labour Conventions ratified by the Government of Guatemala.” According to SONSEC, the authorities of ONSEC have verbally requested a “detailed report on the activities of the members of the executive committee and advisory council within the trade union organization, to enable department heads to monitor the number of hours actually spent on their daily activities as part of their work for ONSEC”. According to SONSEC, this constitutes a flagrant violation of current labour legislation, as the authorities are deliberately misinterpreting what is stipulated in the collective agreement on working conditions, in particular the provisions concerning trade union leave, whereas section 10 of the collective agreement in force sets out how the provisions of the agreement should be legally interpreted, stipulating that the primary authority should be the Constitution of the Republic of Guatemala and that, in the absence of a provision in the Constitution, reference should be made first to the international labour treaties and Conventions adopted and ratified by the Government of Guatemala; then to the relevant provisions of the Civil Service Act; then to the provisions of the Labour Code; and lastly to any provisions applicable to the Executive Authority. Thus, the case in question involves a violation of the provisions of article 106, paragraph 2, of the Constitution of the Republic of Guatemala, which states: “If there is any doubt regarding the interpretation or scope of legal, regulatory or contractual provisions in labour matters, the interpretation that is the most favourable to the workers shall be applied.” SONSEC claims that the policy of discriminating against, harassing and monitoring SONSEC officials in the public administration is aimed at destroying the trade union.
12. 729. SONSEC also alleges that the Government has hindered the process of collective bargaining between ONSEC and its employees. It indicates that, on 15 February 2005, a collective dispute on working conditions, aimed at negotiating a new collective agreement, was referred to the labour courts; accordingly, the First Court of Labour and Social Welfare of the First Economic Zone issued a decision, dated 16 February 2005, assigning the case to the fourth clerk of the court and process server under Case No. 93-2005. The Second Court of Labour and Social Welfare of the First Economic Zone then issued a decision dated 18 February 2005, under which the court set up a conciliation tribunal and assigned the case to the third clerk of the court and process server under Case No. 496-2005. Although a summons has been in effect against ONSEC since 16 February 2005, the Office of the National Procurator-General, as the representative of the State of Guatemala, has used every means at its disposal to delay the collective bargaining process within ONSEC. SONSEC considers that this constitutes a violation of Convention No. 98 and of section 71 of the collective agreement on working conditions which is currently in force in ONSEC.
13. 730. SONSEC adds that Mr Edgar René Guzmán Barrientos, Secretary-General, was a victim of anti-union discrimination as he was not paid the professional bonus due for October 2006.
14. 731. Lastly, SONSEC alleges that the authorities of ONSEC intend to introduce internal regulations which are not compatible with the collective agreement on working conditions currently in force in ONSEC. The aim of the regulations is to restrict the workers’ rights, especially with regard to leave (they are required to give three days’ notice) and to define disciplinary offences which are not covered by the Civil Service Act and its implementing regulation. Furthermore, the procedures governing discipline and dismissals under the collective agreement on working conditions are not properly applied.
15. C. The Government’s reply
16. 732. In its communication of 8 November 2006, with regard to the allegations presented by the Union of Workers of the Directorate General for Migration (STDGM), the Government indicates that it conducted an investigation to establish the facts put forward by the complainant. Specifically, with regard to the refusal to negotiate a collective agreement on working conditions, the Directorate General for Migration supplied information indicating that at no point did it refuse to negotiate the collective agreement on working conditions with the two trade unions currently operating within the Directorate General and that, furthermore, there had been no refusal to negotiate that agreement through legal channels. With regard to the refusal to set up the joint committee, the Directorate General indicates that at no point did it refuse to set up the committee provided for in the collective agreement on working conditions. With regard to the employment status of Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the following information has been provided: Mr Pablo Cush was reinstated in his post but was not paid the wages owed to him, in accordance with the provisions of section 76 of the Organic Budget Act, Decree No. 107-97, of the Congress of the Republic, which provides that “no personal payments shall be made that are not earned and neither shall payment be made for services not rendered”. The situation of Mr Jaime Roberto Reyes Gonda is currently being clarified in the courts.
17. 733. In its communication of 21 November 2006, in relation to the alleged dismissal of 14 members of the Union of Workers of the Chinautla Municipal Authority (SITRAMUNICH) without the legal authorization of the court dealing with the collective dispute the Government indicates that, in response to a request for information, the Fifth Court of Labour and Social Welfare provided details on the reinstatement of six of the 14 individuals mentioned in the complaint, as follows: in the case of Lourdes Elizabeth Tahuite Coche, the parties were notified of the decision of the Third Chamber of the Labour Appeals Court upholding the lower-court ruling; in the case of María Elisa Sipac López, the parties were notified of the decision of the Third Chamber of the Labour Appeals Court upholding the lower-court decision; in the case of Mayra Julieta Morales González, although the decision was upheld by the Third Chamber of the Labour Appeals Court, the plaintiff was not reinstated because she did not appear in court in order for the necessary formalities to be carried out; in the case of Juan Carlos Maldonado Aragón, the competent justice of the peace was assigned the task of implementing the reinstatement, in accordance with the decision of the Third Chamber of the Labour Appeals Court, which upheld the lower-court decision; in the case of Luis Enrique Rivera (only one surname), although the lower-court decision was upheld by the Third Chamber of the Labour Appeals Court, the plaintiff was not reinstated because he did not appear in court in order for the necessary formalities to be carried out; and, in the case of Gregorio Mijangos Catalán, the Third Chamber of the Labour Appeals Court dismissed the reinstatement proceedings.
18. 734. In its communication of 24 November 2006, in relation to the allegation that the Government is promoting a new Civil Service Act containing provisions contrary to ratified ILO Conventions on freedom of association, the Government reports that the civil and municipal services bills are being developed to meet a pressing need in Guatemala, it being common knowledge that the public services at both the national and municipal levels are of a low standard and that state employees lack job security, career opportunities and incentives and are consequently accused of being incompetent, lacking in transparency and slow to act. For that reason, organized civil society, through the political parties represented in Guatemala and with the technical support of the Organization of American States (OAS), has launched a series of consultations and research and fieldwork activities for the development of both civil service bills.
19. 735. Prior to and during the administration of President Oscar Berger, when the Presidential Commission for the Reform, Modernization and Strengthening of the State and its Decentralized Bodies (COPRE) was assigned the task of following up the bill, a series of consultations was held involving different sectors of national society, at which participants were presented with the bill, given a copy of the text and invited to provide feedback in order to add to its value. The following sectors were involved: socio-economic groups (non-governmental organizations (NGOs), foundations and associations); the international sector, including bodies and foreign agencies that have carried out relevant research (the World Bank, the Inter-American Development Bank, the United States Agency for International Development, etc.); academia (universities and research institutes); the trade unions (municipal and public sector federations and trade unions); rural and urban development councils (in each of the 22 administrative departments, with the involvement of civil society and government and municipal authorities); municipal associations (the National Association of Municipalities (ANAM) and the Association of Indigenous Mayors (AGAI)); the production sector (the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF)); political parties (technical advisers); state employees working for government and municipal authorities; the Government Cabinet; the tripartite committee (government, trade unions, employers); and embassies, consulates and international cooperation agencies.
20. 736. In late 2004 and early 2005, the groups concerned with the civil service reform process were invited to participate in working parties. In particular, a public notice was issued in the press (in the Official Journal and in two of the largest privately owned daily newspapers), inviting municipal and public sector trade unions, who were sent electronic copies of the bills, to participate in the working parties to discuss the bills (section by section). Over 56 trade union organizations signed up and were represented in the discussions. During the process, participants provided input and added value to the bills before these were submitted to the bodies provided for by law. Then, in March 2005, final versions of the draft bills were presented to a group of human resources managers from government bodies, who were given the opportunity to review the latest version and make final comments. The workshop included contributions by ONSEC, COPRE and an NGO representing the non-governmental sector.
21. 737. Once that stage in the procedure had been completed, the bills were submitted to three internal government filters to obtain the necessary legal opinions. First, after formal and technical discussions in which the relevant recommendations were made, the legal team of COPRE, comprising five lawyers, issued a favourable opinion. Secondly, the General Secretariat of the Office of the President, after making recommendations and introducing drafting amendments, issued an opinion in favour of forwarding the bills to the Congress of the Republic. The third filter was the Ministry of Labour, to which the President of the Republic had assigned the task of submitting the amended bills with an explanatory statement to the Congress. The bills were submitted in November 2005 as Proposals Nos 3395 and 3396 by the President of the Republic to the legislative authority and were referred to the labour, social welfare and municipal affairs committees. The draft texts had already been formally presented, together with an explanatory statement, to these legislative committees and to 40 per cent of the legislature. Each member of the Congress received a hard copy of the proposals with a note requesting support for the approval and serious discussion of the proposals.
22. 738. The legislative proposals are aimed at modernizing the civil service by enhancing professionalism and by guaranteeing fundamental labour rights, such as the right to job security, the right to salary adjustments and post reclassification and the right to a career structure. Eleven subsystems have been developed under this legislation, with world-class human resources management and development methods that focus on the individual, i.e. the human factor, in public administration. Acquired rights are, generally speaking, respected, for example: Section 3, General principles. These include: gender equality and equity (1), fair pay (2), freedom of association (3), job security (10), protection of staff of public services and minimum labour standards (15), cultural diversity (16). Section 6, Supremacy of the Constitution and subsidiary sources of law: “In the interpretation and application of this Act, regard shall be had at all times to the supremacy of the Constitution and other subsidiary sources of law, in the following order: the international human rights treaties, specifically those relating to labour matters, which have been approved and ratified by the State of Guatemala; the Labour Code and other labour legislation; collective agreements; the general principles of law; and principles of human resources management.” Section 24, Rights: “Civil servants and state employees shall enjoy the rights enshrined in the Constitution of the Republic, in the international treaties relating to labour rights approved and ratified by the State of Guatemala, in this Act and in other related laws and their regulations.” Part III, Chapter II, Trade union organization. Section 69, Trade unions: “State employees of the bodies governed by this Act may form trade unions, understood to mean permanent associations of state employees, aimed at promoting the analysis, improvement and protection of their labour interests. This does not apply to members of the armed forces and security forces and civil servants representing the public administration.”
23. 739. The Government points out that the Congressional Committee on Labour recently issued an unfavourable opinion on the civil service bill, and consequently, in accordance with the general rules of procedure of the Congress of the Republic, this legislative proposal shall not be considered further. COPRE has indicated, however, that the necessary changes and amendments are being made to the original bill to incorporate the comments made by the members of Congress.
24. 740. In its communication of 9 January 2007, the Government adds in relation to the contested bill for a new Civil Service Act that Legislative Proposal No. 3305, providing for the approval of the Civil Service Act, was submitted to the Congress of the Republic by the Executive Authority and was assigned to the congressional committees on labour, social welfare and social security. Although the Congressional Committee on Labour issued an unfavourable opinion on the civil service bill, the same legislative proposal was endorsed by the Congressional Committee on Social Welfare and Social Security.
25. 741. The Government indicates that section 43 of the Organic Act on the Legislative Authority, Decree No. 63-94 of the Congress of the Republic stipulates that each committee may present its own opinion – whether favourable or unfavourable – to the Congress of the Republic in plenary session, which shall decide whether or not to accept the opinion. If a favourable opinion is accepted, the legislative proposal shall continue its passage; if an unfavourable opinion is accepted, the legislative proposal shall be shelved. The Government notes that COPRE, the body responsible for reforming the Civil Service Act, has indicated that it would welcome the recommendations and advice of the International Labour Organization (ILO) and has therefore requested the technical assistance offered by the ILO.
26. 742. In its communication of 22 March 2007, the Government states the following in relation to the allegations presented by SONSEC:
27. – Monitoring the activities of the members of the trade union’s executive committee and advisory council: ONSEC has displayed a cooperative and supportive attitude towards the activities of SONSEC. As acknowledged by the complainants, the members of the trade union’s executive committee and advisory council voluntarily report on their activities to the department heads, voluntarily giving the reasons for their absences from the workplace. No measures have been taken to control in any way the exercise of the guaranteed and recognized rights relating to trade union organization; if such measures had been taken, documentary evidence of the relevant objections or complaints filed, if any, by the trade union should have been attached; this was not the case, because the alleged harassment did not occur. It is worth highlighting in this regard that, in accordance with the provisions of the second collective agreement on working conditions which is currently in force in ONSEC (the last two paragraphs of section 14), the members of SONSEC must seek the authorization of the director of ONSEC in order to benefit from special leave and to participate in the activities organized by the trade union.
28. – Hindering the collective bargaining process: ONSEC denies the accusation that it is hindering the collective bargaining process as totally false, as it was SONSEC that left the negotiating table and initiated the current summons proceedings, thereby stalling the negotiation of the agreement. If a simple comparison is drawn between the benefits provided under the current collective agreement on working conditions and those that were actually granted, it is clear that ONSEC is willing to negotiate more favourable conditions for its employees. Thus, there is a lack of consistency between the negotiation process which was under way and the complaint or accusation now being submitted by this organization with the intention of confusing the Members of the ILO and taking them by surprise. The allegations are totally inconsistent, as the issuance of a summons was agreed and decided on by the parties negotiating on behalf of the trade union, who abandoned the collective bargaining process. The Government indicates that, despite the lack of willingness on the part of SONSEC, ONSEC, in view of the situation faced by its employees as a result of the lack of understanding and the attitude adopted by this organization, has granted temporary benefits to its employees, and therefore cannot accept the accusations made against it, as it is illogical to think that freedom of association is being violated when ONSEC has granted temporary benefits in addition to those covered by the agreement, in an attempt to minimize in some way the mistakes made by this trade union organization.
29. – Failure to pay the professional bonus for October 2006 to the worker Edgar René Guzmán Barrientos, without the authorization of the competent court: In accordance with the applicable regulation, the State of Guatemala grants a bonus to state employees who have the status of professionals with university qualifications, on condition that they have the relevant legal documents to prove their professional status and to prove that they are actively engaged in the profession. It is essential to provide proof of active engagement because a person can be a qualified professional without being actively engaged and, hence, in order to receive the bonus, it is necessary to provide proof of active engagement in accordance with the provisions of Government Agreement No. 327-90 of 28 February 1990 (section 3 and section 4, paragraph 2). A professional bonus is not withdrawn on the basis of participation in a particular activity (such as trade union activities) but rather payment of the bonus is conditional on the possession of academic qualifications, and this requirement applies to all professionals working for the State of Guatemala, without exception; belonging to an organization – in this case to a trade union – does not exempt an individual from this obligation. Mr Edgar René Guzmán Barrientos, just like all the other professionals working for ONSEC, was duly notified of the requirement to provide proof of his status as an active professional, and was one of only two such professionals in ONSEC who did not fulfil that requirement; consequently, he did not receive the bonus for the month for which he failed to provide proof of his status, as required by law. In this specific case, the plaintiff was duly notified in advance; furthermore, there is evidence that, on previous occasions, he complied with and was therefore aware of the obligation which was not fulfilled in the present case, in which “documents” were supplied that did not meet the legal requirements. All of this bears no relation to the trade union activity of the plaintiff, which does not exempt him from the obligation of providing proof of his status as an active professional .
30. – Implementation of internal regulations which are not compatible with the collective labour agreement currently in force and which affect trade union leave and other matters: In order to comply with the provisions of section 25 of the Civil Service Act, the ONSEC authority has been empowered to implement instruments to regulate the activities of the institution. In this case, a consultative process was initiated to establish regulations governing the activities of ONSEC employees. Workers and managers were invited to provide input, in order to achieve broader consensus in the implementation of the regulations. SONSEC was invited to participate in this process, as were any state employees who did not belong to the trade union but who wished to participate in the dialogue. The representatives of SONSEC did not accept the invitation and did not participate in the scheduled activities; consequently the discussion process was suspended until the participation of interested parties could be increased. It is worth noting that the document submitted by the complainants is not the same document as that which was discussed and which has now reached an impasse pending technical and legal evaluations. In sum, ONSEC reiterates that it has always respected the right to form trade unions as laid down in the Constitution of the Republic of Guatemala and in section 9 of the collective agreement on working conditions currently in force between ONSEC and SONSEC.
31. 743. In its communication of 14 May 2007, in relation to the allegations that the Minister of Education requested a process of reorganization, in clear violation of the summons against the Department of Education of Guatemala, the Government indicates that, according to the information provided by the Second Court of Labour and Social Welfare, 25 petitions for reinstatement were filed in the 2004–06 period in connection with the socio-economic collective dispute registered under No. 2049-2002. Of the abovementioned cases, the only individuals reinstated were those who filed petitions Nos 24-2004 and 12-2005; none of the others led to reinstatement proceedings, because the individuals involved had not been employed by the Department of Education of Guatemala, against which the collective dispute complaint had been registered.
32. 744. In its communication of 1 June 2007, in relation to the allegations presented by SONSEC, the Government reports that, according to the Civil Services Directorate, in order to avoid further complications, it paid worker Edgar René Guzmán Barrientos the professional bonus for October 2006. In its communication of 7 June 2007, the Government indicates that it directly requested the complainant organization to provide the number of the case file or files relating to the dismissal of the members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material, because the limited information provided previously (only the names) was not enough to locate the files relating to reinstatement. As the organization in question did not respond positively to that request, claiming that it was not in its interest to provide the information, the Government requests that it be asked to supply the information, as it is crucial to the continued investigation of the case.

D. The Committee’s conclusions

1. 745. The Committee recalls that this case refers to allegations of anti-union discrimination (primarily the dismissal of union leaders and union members), the failure to promote collective bargaining and the preparation of a civil service bill which, according to the complainants, would not be compatible with the provisions of Conventions Nos 87 and 98.
2. 746. With regard to subparagraph (a) of the recommendations concerning the dismissal from the Chinautla Municipal Authority of 14 union members and union leader Mr Marlon Vinicio Avalos, the Committee notes that, according to the Government, the Fifth Court of Labour and Social Welfare reported the following: (1) in the case of Ms Lourdes Elizabeth Tahuite Coche, the parties were notified of the decision of the Third Chamber of the Labour Appeals Court upholding the lower-court ruling; (2) in the case of Ms María Elisa Sipac López, the parties were notified of the decision of the Third Chamber of the Labour Appeals Court upholding the lower-court decision; (3) in the case of Ms Mayra Julieta Morales González, although the decision was upheld by the Third Chamber of the Labour Appeals Court, the plaintiff was not reinstated because she did not appear in court in order for the necessary formalities to be carried out; (4) in the case of Mr Juan Carlos Maldonado Aragón, the competent justice of the peace was assigned the task of implementing the reinstatement, in accordance with the decision of the Third Chamber of the Labour Appeals Court, which upheld the lower-court decision; (5) in the case of Mr Luis Enrique Rivera, although the lower-court decision was upheld by the Third Chamber of the Labour Appeals Court, the plaintiff was not reinstated because he did not appear in court in order for the necessary formalities to be carried out; and (6) in the case of Mr Gregorio Mijangos Catalán, the Third Chamber of the Labour Appeals Court dismissed the reinstatement proceedings. The Committee requests the Government to keep it informed of the final outcome of the abovementioned judicial proceedings relating to the effective reinstatement of workers in their posts, and to report on the other dismissed workers, including the trade union leader, Mr Marlon Vinicio Avalos.
3. 747. With regard to subparagraph (b) of the recommendations, on the need to promote collective bargaining in the Chinautla Municipal Authority, the Committee regrets that the Government has not sent its observations on this matter. In these circumstances, the Committee requests the Government to take without delay the necessary measures to promote collective bargaining in the Chinautla Municipal Authority and to keep it informed in this respect.
4. 748. With regard to subparagraph (c) of the recommendations, on the contested civil service bill, the Committee notes that, according to the Government: (1) the civil and municipal services bills are being developed to meet a pressing need in Guatemala, it being common knowledge that the public services at both the national and municipal levels are of a low standard and that state employees lack job security, career opportunities and incentives and are consequently accused of being incompetent, lacking in transparency and slow to act; (2) a series of consultations were held involving various sectors (including public and municipal sector federations and trade unions, the tripartite committee, the production sector, etc.) in which participants were presented with the bill, given a copy of it and invited to provide feedback; (3) in late 2004 and early 2005, the groups concerned with the civil service reform process were invited to participate in working parties; in particular, a public notice was issued in the press (in the Official Journal and in two of the largest privately owned daily newspapers), inviting municipal and public sector trade unions, who were sent electronic copies of the bills, to participate in the working parties to discuss the bills (on an article-by-article basis). Over 56 trade union organizations signed up and were represented in the discussions. During the process, participants provided contributions and input to the bills so as to improve them before these were submitted to the bodies provided for by law; (4) the bills were submitted in November 2005 as Legislative Proposals Nos 3395 and 3396 by the President of the Republic to the legislative authority and were referred to the labour, social welfare and municipal affairs committees; (5) the legislative proposals are aimed at modernizing the civil service by enhancing professionalism and by guaranteeing fundamental labour rights, such as the right to job security, the right to salary adjustments and post reclassification and the right to a career structure; acquired rights (including the right to freedom of association) are, generally speaking, respected; (6) although the Congressional Committee on Labour issued an unfavourable opinion on the civil service bill, the legislative proposal was endorsed by the Congressional Committee on Social Welfare and Social Security; (7) in accordance with current legislation, each committee may present its own opinion – whether favourable or unfavourable – to the Congress of the Republic in plenary session, which shall decide whether or not to accept the opinion. If a favourable opinion is accepted, the legislative proposal shall continue its passage; if an unfavourable opinion is accepted, the legislative proposal shall be shelved; (8) COPRE, the body responsible for reforming the Civil Service Act, is willing to accept the recommendations and advice of the ILO and has therefore requested the technical assistance offered by the ILO.
5. 749. In this respect, noting that the Congress of the Republic in plenary session must decide whether to accept the unfavourable opinion of the Congressional Committee on Labour or the favourable opinion of the Congressional Committee on Social Welfare and Social Security in regard to the bill to reform the Civil Service Act, the Committee requests the Government to keep it informed of the passage of the bill and trusts that the ILO will provide the requested technical assistance.
6. 750. With regard to subparagraph (d) of the recommendations relating to the allegation that departments in the Ministry of Education are being reorganized with the possible elimination of posts with the aim of destroying the union that operates within that Ministry, the Committee notes that, according to the Government, the Second Court of Labour and Social Welfare reported that 25 petitions for reinstatement were presented in the 2004–06 period in connection with the socio-economic collective dispute registered under No. 2049-2002, that two individuals were reinstated and that the others were not reinstated because they had not been employed by the Department of Education.
7. 751. With regard to subparagraph (e) of the recommendations on the dismissal of 16 members of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material as a result of an allegedly illegal reorganization, without consultation, ordered by the Minister of Education, and the action taken to dismiss all members of the union’s executive committee, and with regard to subparagraph (f) on the alleged action taken by the Ministry of Education to dismiss all members of the executive committee of the Union of Workers of the “José de Pineda Ibarra” National Centre for Textbooks and Educational Material, the Committee notes that, according to the Government: (1) the complainant organization was requested to provide the number of the case file or files relating to the dismissals, as it is not possible to locate the files relating to the reinstatement with only the names of those affected; and (2) the trade union organization indicated that it was not in its interest to provide that information. In these circumstances, the Committee requests the complainant organization, FENASTEG, to provide information on the case file numbers or on the courts which handled the relevant proceedings.
8. 752. With regard to subparagraph (g) of the recommendations on: (1) the refusal of the Directorate General for Migration to negotiate the collective agreement and to reinstate union leader Mr Pablo Cush with payment of lost wages and the measures being taken to dismiss union leader Mr Jaime Roberto Reyes Gonda without court authorization; and (2) the refusal of the Directorate General for Migration to set up the joint committee provided for in the collective agreement, the Committee notes that, according to the Government: (i) the Directorate General for Migration indicated that at no point did it refuse to negotiate the collective agreement on working conditions with the two trade unions currently operating within the Directorate General, that there had been no refusal to negotiate that agreement through legal channels and that neither had it refused to set up the joint committee provided for in the collective agreement on working conditions, and (ii) Mr Pablo Cush was reinstated in his post but was not paid the wages owed to him, in accordance with the provisions of the Budget Act, and the situation of Mr Jaime Roberto Reyes Gonda is currently being clarified in the courts. In this regard, the Committee requests the Government to take the necessary measures to promote collective bargaining between the Directorate General for Migration and the trade unions concerned and to keep it informed in this regard. Furthermore, with regard to the dismissal of trade union leaders Mr Pablo Cush and Mr Jaime Roberto Reyes Gonda, the Committee recalls that, in its examination of numerous cases of anti-union dismissal, it requested governments to see to it that the affected workers were reinstated in their posts without loss of pay [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 840]. In these circumstances, the Committee requests the Government to do everything in its power to ensure that Mr Cush – who has now been reinstated – receives payment of lost wages and to keep it informed of the outcome of the judicial proceedings relating to the dismissal of trade union leader Mr Jaime Roberto Reyes Gonda. If the law prohibits or prevents the payment of these wages, the Committee considers that it should be modified.
9. 753. Regarding the new allegations presented by SONSEC and FENASTEG on:
10. – The violation of section 14 of the collective agreement on working conditions relating to the freedom to carry out trade union activities (recognition of the right of members of the executive committee and advisory council to engage in trade union activities during normal working hours): The Committee notes that, according to the Government: (1) ONSEC has displayed a cooperative and supportive attitude towards the activities of SONSEC; (2) the representatives of SONSEC voluntarily report on their activities to the department heads, giving the reasons for their absences; no measures have been taken to control the exercise of guaranteed rights; and (3) in accordance with the provisions of section 14 of the collective agreement on working conditions, the members of SONSEC must seek the authorization of the director of ONSEC in order to benefit from special leave and to participate in the activities organized by the trade union. In view of this information, the Committee will not pursue its consideration of these allegations.
11. – Hindering the collective bargaining process: The Committee notes that, according to the Government, it was SONSEC that left the negotiating table and initiated the current summons proceedings (for a court appearance), thus stalling the negotiation of the agreement, and that ONSEC, in view of the lack of willingness on the part of SONSEC and considering the situation facing its employees, has granted temporary benefits to its employees. In these circumstances, the Committee requests the Government to take measures to promote collective bargaining between ONSEC and SONSEC and to keep it informed in this regard.
12. – Failure to pay the professional bonus for October 2006 to the SONSEC leader, Mr Edgar René Guzmán Barrientos: The Committee notes that, according to the Government: (1) in accordance with the applicable regulation, the State grants a bonus to state employees who are professionals with university qualifications, on condition that they provide the relevant legal documents to prove their status and are actively engaged in the profession; (2) it is necessary, without exception, to provide proof of academic status; belonging to a trade union organization does not exempt an individual from this obligation; (3) the trade union leader in question was one of two such individuals in ONSEC who did not meet the necessary requirements, and therefore did not receive the bonus in question; and (4) in order to avoid further complications, the professional bonus was finally paid. In the light of this information, the Committee will not pursue its consideration of these allegations.
13. – Implementation of internal regulations which are not compatible with the collective agreement on working conditions, in particular with regard to trade union leave: The Committee notes that, according to the Government: (1) in order to comply with the provisions of section 25 of the Civil Service Act, the ONSEC authority has been empowered to implement instruments to regulate the activities of the institution; (2) in this case, a consultative process was initiated to establish regulations governing the activities of ONSEC employees, and workers and managers were invited to provide input, in order to achieve broader consensus in the implementation of the regulations; (3) SONSEC was invited to participate in this process, as were state employees who did not belong to the trade union but who wished to participate in the dialogue; (4) the representatives of SONSEC did not accept the invitation and did not participate in the scheduled activities and consequently the discussion process was suspended until the participation of interested parties could be increased; it is important to note that the document submitted by the complainants is not the same document as the one which was discussed and which has now reached an impasse pending technical and legal evaluations. In these circumstances, the Committee expects that ONSEC will consult fully with SONSEC if it intends to adopt new internal regulations.