Informe definitivo - Informe núm. 381, Marzo 2017

1. 475. The complaint is contained in communications dated 13, 14 and 15 February and 11 June 2012, presented by the Trade Union, Indigenous and Campesino Movement of Guatemala (MSICG).
2. 476. The Government sent its observations in communications dated 26 March, 13 and 16 April 2015 and 2 June 2016.
3. 477. 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, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 478. Firstly, the complainant organization alleges interference by the Guatemalan Social Security Institute (IGSS) in the functioning of the Union of Professional Workers of the Guatemalan Social Security Institute (STPIGSS) through administrative and criminal legal actions seeking to invalidate the registration of the union officers. In this regard, the complainant specifically states that: (i) in 2011, the IGSS adopted a series of measures to privatize certain social security services and restrict Guatemalan workers’ acquired social security rights; (ii) the STPIGSS, together with the Union of Workers of the Guatemalan Social Security Institute (STIGSS) and the MSICG to which it is affiliated, opposed these reforms, both through judicial actions for constitutional review and through declarations and mobilizations; (iii) the general secretary, Mr Rodolfo Juárez Ralda, and the records secretary, Ms Layla Lerisa Chanquin Jocol de Pérez, of the STPIGSS were particularly active in these initiatives; (iv) in retaliation, in early 2011 the IGSS filed an appeal against the registration by the labour administration of the STPIGSS officers for the 2011–12 period, thereby administratively contesting the internal elections of the STPIGSS; (v) although the Ministry of Labour and Social Welfare rejected this appeal on 11 July 2011 on the grounds that the employer was not an injured party and that the trade union had complied with the law, at no point did the Ministry inform the IGSS that employer interference in the internal affairs of a trade union was prohibited by ILO Convention No. 87; rather, it indicated that the employer should use whatever means available to have the Ministry’s registration of the union officers for the 2011–12 period invalidated; (vi) in its decision, the Ministry also ordered the employer to seek the suspension of the registration of the STPIGSS officers via criminal law proceedings; (vii) the action brought by the IGSS to contest the trade union elections is founded on the statements, given under pressure, of two STPIGSS members who stated that they had been placed on the list of union officers without standing as candidates; and (viii) the Ministry of Labour and Social Welfare has not received any challenge to the union elections from the union’s own members.
2. 479. The complainant organization then refers to the criminal action filed by the IGSS seeking to have the results of the union elections and the registration of the STPIGSS officers for 2010–12 invalidated. The complainant states that: (i) in addition to the administrative appeals, on 11 July 2011 the employer filed a criminal action against Mr Rodolfo Juárez Ralda, the general secretary of the STPIGSS, and Ms Layla Lerisa Chanquin Jocol de Pérez, the union’s records secretary, for placing the names of two union members, without their consent or knowledge, on the list of union officers; and (ii) when the criminal proceedings began on 13 February 2012, the judge of the criminal court of first instance ordered the officers to be placed under house arrest and to appear in court on charges of falsification of facts and documents. The complainant stresses that, under the STIGSS constitution and the Labour Code, any objection to the internal elections of the union should give rise to the initiation of legal proceedings by union members, which has not occurred to date.
3. 480. Secondly, the complainant organization alleges that the Attorney-General’s Office and the national courts violated the right to collective bargaining of the Union of Organized Workers of the Attorney-General’s Office (STOPGN) by promoting bargaining with a minority union, the Union of Workers of the Attorney-General’s Office (STPGN). In this regard, the complainant specifically states that: (i) the STOPGN is the majority union at the Attorney-General’s Office; (ii) as such, in accordance with section 51 of the Labour Code, the STOPGN concluded a collective agreement on working conditions with the Attorney-General’s Office that was approved on 28 January 2009; (iii) the STPGN, however, is a minority union under the influence of the employer; (iv) the minority union brought a collective dispute of an economic and labour-related nature before the labour courts in an attempt to secure recognition of its right to bargain collectively; (v) the Fourth Labour and Social Welfare Court, in violation of the provisions of the Labour Code which establish that the majority union is the one entitled to engage in collective bargaining, issued an arbitration award granting the STPGN that entitlement and unilaterally altering the content of the collective agreement signed by the STOPGN and approved by the labour administration; (vi) this amendment to the collective agreement was made without the STOPGN being summoned to court or notified by the employer; (vii) when it became aware of what had happened, the STOPGN applied to intervene as a third party (tercero excluyente) in the appeal against the award; (viii) although the First Chamber of the Labour and Social Welfare Court of Appeal allowed this intervention by the STOPGN, it issued a judgment on 10 June 2011 without so much as granting a hearing to the STOPGN; (ix) in view of the aforementioned irregularities, the STOPGN applied for amparo (protection of constitutional rights) before the Supreme Court of Justice and requested, but was denied, a temporary suspension of the arbitration award; (x) on 10 November 2011, the Supreme Court denied amparo and upheld the arbitration award; and (xi) the STOPGN filed an appeal against the judgment with the Constitutional Court. The complainant considers that this refusal to grant amparo to the STOPGN means in effect that an employer can negotiate, with a minority union, amendments to a collective agreement which has been negotiated with the most representative trade union and that a court can alter the content and scope of a freely concluded agreement without the involvement of the representatives of the signatory union.
4. 481. Thirdly, the complainant organization alleges failure to include the Domestic Workers’ Union of Guatemala (SINTRACAPGUA) in the social dialogue relating to the possible ratification of the Domestic Workers Convention, 2011 (No. 189). In this regard, the complainant specifically points out that: (i) SINTRACAPGUA applied for registration at the Ministry of Labour and Social Welfare in January 2011 and, although it met all the legal requirements, it was obliged to wait over a year before it was registered; (ii) SINTRACAPGUA, affiliated to the MSICG, is the only union of officially employed domestic workers in the country and is therefore the sector’s most representative union; (iii) after Convention No. 189 was adopted by the International Labour Conference in June 2011, SINTRACAPGUA and the MSICG held a meeting with the Ministry of Labour and Social Welfare on 16 August 2011 to demand its ratification and to submit a draft bill in this regard; (iv) with the same objective, SINTRACAPGUA also held a meeting with the Office of the Vice-President of the Republic on 26 January 2012; and (v) in spite of the foregoing, the Government has consistently refused to engage in a dialogue with SINTRACAPGUA on account of its affiliation to the MSICG and has preferred to maintain contact with a civil association, the Association of Domestic, Home and Export-Processing Industry Workers (ATRAHDOM), and with the Union of Domestic, Allied and Own-Account Workers, which forms part of the Guatemalan Union of Workers, a pro-Government organization. In the light of the above, the complainant asserts that the members of SINTRACAPGUA are the subject of anti-union discrimination as a result of their organization’s affiliation to the MSICG, which is contrary to ILO Conventions Nos 87, 98 and 144.
5. 482. The communications submitted by the complainant organization in the context of this case also contain allegations that coincide with those made in other complaints presented to the Committee by this organization.

B. The Government’s reply

1. 483. In its communication of 17 April 2015, the Government finds it regrettable, first, that the complainant organization continues to make identical allegations in the context of various complaints. The Government proceeds to provide its observations regarding the allegations of interference in the functioning of the STPIGSS through the administrative and criminal appeals filed by the IGSS. In this regard, the Government indicates that: (i) according to the Political Constitution of Guatemala, employers, like all other citizens, have the right of petition; (ii) the appeal filed by the IGSS management to challenge certain official records of the STIGSS was therefore not illegal; (iii) this appeal was dismissed by the Ministry of Labour and Social Welfare, upholding the rights of the workers; (iv) the criminal proceedings brought against Mr Rodolfo Juárez Ralda and Ms Layla Lerisa Chanquin Jocol de Pérez for the offences of falsification of documents and facts were dismissed in favour of the trade union leaders in a decision issued by the Tenth Criminal Court of First Instance for Drug-Related Activities and Crimes against the Environment in Guatemala City on 25 April 2014; and (v) this decision was upheld on 6 June 2014 by the First Chamber of the Criminal Court of Appeal for Drug-Related Activities and Crimes against the Environment.
2. 484. In its communication of 23 April 2015, the Government provides its observations regarding the allegations of violation of the STOPGN collective bargaining rights by the Attorney-General’s Office and the national courts. In this regard, the Government states that the Attorney-General’s Office does indeed have two registered active trade unions: the STPGN, which was registered in 1995 and had 22 members in 2015, and the STOPGN, which was registered in 2006 and had 137 members in 2015.
3. 485. The Government adds that the Constitutional Court examined the appeal lodged by the STOPGN against the judgment of 10 June 2011 of the Labour Court of Appeal, further to the adoption of an arbitration award by a labour court on 29 April 2011 which unilaterally altered the collective agreement concluded by the Attorney-General’s Office and the majority union, the STOPGN, following a request by the STPGN to engage in collective bargaining. The Constitutional Court, in a judgment dated 10 September 2014, upheld the judgment of the Court of Appeal, finding that: (i) it was the responsibility of the majority union to inform the labour court that examined the action filed by the STPGN (the minority union) of the existence of a majority union within the Attorney-General’s Office and of the signing of a collective agreement by this union; (ii) the majority union had waited two years and three months before contacting the labour court to inform it of the existence of this agreement; and (iii) the decision, which was upheld by the Court of Appeal and called for the draft collective agreement prepared by the minority union and the agreement signed by the majority union to be incorporated into a single instrument, was not contrary to the interests of the majority union, as the incorporation, in accordance with section 42 of the Labour Code, entailed selecting the clauses most favourable to the workers. The Government concludes by stating that the Attorney-General’s Office has never negotiated with the STPGN (the minority union) and that the collective agreement which is in force at the Attorney-General’s Office is the one that was concluded with the majority union, the STOPGN, and was approved in January 2009.
4. 486. In its communication of 2 June 2016, the Government sends its observations concerning the alleged failure to include SINTRACAPGUA in the social dialogue relating to the possible ratification of ILO Convention No. 189. In this regard, the Government indicates that: (i) an ILO official was invited to explain the content of the new Convention to the Tripartite Committee on International Labour Affairs; (ii) two tripartite consultations were held in August 2012 and February 2013; and (iii) the consultation in February 2013 led to the participation of ATRAHDOM and of the Consortium of Social and Trade Union Organizations for Working Women and was held with support from the ILO. The Government concludes by saying that it has fulfilled its obligations regarding the submission of the new Convention adopted by the ILO and that the complainant organization’s allegation is unrelated to the observance of the ILO Conventions on freedom of association and collective bargaining ratified by Guatemala.

C. The Committee’s conclusions

1. 487. The Committee notes that, in the present case, the complainant organization alleges interference in the internal affairs of a trade union, violation of a majority union’s right to collective bargaining, and exclusion of a domestic workers’ union from social dialogue.
2. 488. In relation to the allegations made by the complainant organization in the context of this case which coincide with allegations contained in other complaints submitted to the Committee by the same organization, the Committee notes that: (i) the allegations relating to the murder of Mr Jesús Ramírez, general secretary of the Union of Workers of the Public Criminal Defence Institute (STIDPP), are being examined in the context of Case No. 2609; (ii) the allegations relating to obstacles to the exercise of freedom of association and collective bargaining in the export-processing (maquila) sector have also been examined in the context of Case No. 2609; (iii) the allegations relating to anti-union acts committed by the Public Criminal Defence Institute against the STIDPP and those relating to obstruction of the right to collective bargaining of the Union of Workers of the Guatemalan Social Security Institute (STIGSS) are being examined by the Committee in the context of Case No. 2948; and (iv) the allegations of obstruction of the registration of various trade union organizations are being examined by the Committee in the context of Case No. 3042.
3. 489. As regards the complaint of interference by the Guatemalan Social Security Institute (IGSS) in the internal affairs of the Union of Professional Workers of the Guatemalan Social Security Institute (STPIGSS), the Committee notes that the complainant organization indicates that: (i) in retaliation for the opposition of the STPIGSS to its policy of social security privatization and with a view to undermining the trade union, in 2011 the IGSS filed administrative and criminal appeals against the election of the union’s officers for the 2011–12 period; (ii) no member of the STPIGSS challenged the election of the union executive committee, which was conducted in full respect for the law and the trade union’s constitution; (iii) the appeals were based on the statements, given under pressure, of two STPIGSS members, who stated that they had been placed on the list of union officers without standing as candidates; and (iv) during its examination of the administrative appeal, the Ministry of Labour and Social Welfare invited the IGSS to file a criminal complaint in respect of certain events that allegedly surrounded the internal electoral process of the STPIGSS. The Committee further notes that the Government, for its part, states that: (i) the right of petition is a universal right under the national Constitution; (ii) the administrative appeal filed by the IGSS was dismissed by the labour administration in July 2011, on the grounds that the union electoral process had been lawful; (iii) the criminal appeals brought against the general secretary and the records secretary of the STPIGSS were dismissed in favour of the union leaders in first- and second-instance judgments dated 25 April and 6 June 2014. While observing that the information provided by the Government indicates that the courts ruled in favour of the trade union in the various actions brought by the IGSS, the Committee notes with regret that it took the criminal courts almost three years to determine that the abovementioned criminal appeals did not merit further examination. In this regard, the Committee recalls that respect for due process of law should not preclude the possibility of a fair and rapid trial and, on the contrary, an excessive delay may intimidate the [union] leaders concerned, thus having repercussions on the exercise of their activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 103]. The Committee trusts that, in the future, this principle will be given due consideration.
4. 490. With regard to the alleged violation of the right to collective bargaining of the Union of Organized Workers of the Attorney-General’s Office (STOPGN), the Committee observes that the allegations of the complainant organization and the Government’s reply indicate that: (i) the Attorney-General’s Office has two trade unions: the Union of Workers of the Attorney-General’s Office (STPGN), established in 1995 and currently a minority union, and the STOPGN, currently the majority union and established in 2006; (ii) in 2004, prior to the establishment of the STOPGN, the STPGN, unable to reach direct agreement with the Attorney-General’s Office on the conclusion of a collective agreement, brought an action before the labour courts to seek recognition of the right to bargain collectively and secure the adoption of a collective agreement through an arbitration award (start of an economic and labour dispute); (iii) the STOPGN, which was the majority union despite having been established later, negotiated and concluded a collective agreement with the Attorney-General’s Office which was approved by the labour administration in 2009; (iv) the economic and labour dispute initiated by the STPGN, the older but minority union, nevertheless continued; (v) having become aware of the existence of the collective agreement concluded by the Attorney-General’s Office and the STOPGN, the labour court issued its arbitration award on 29 April 2011, requiring the draft collective agreement submitted by the STPGN and the agreement signed by the STOPGN to be incorporated into a single instrument; and (vi) the STOPGN challenged the arbitration award, first in the Court of Appeal and then in the Constitutional Court, both of which ruled against the majority union (the latter judgment being issued in September 2014).
5. 491. In relation to these facts, the Committee observes, on the one hand, that the complainant organization alleges that the principles of collective bargaining and the provisions (section 51) of the Guatemalan Labour Code were violated in so far as the right to bargain collectively was granted to a minority union and the content of the collective agreement freely negotiated with the most representative union was unilaterally altered through an arbitration award. The Committee nevertheless observes the Government’s indication that: (i) the Constitutional Court found that the STOPGN excessively delayed informing the Labour Court – which issued the arbitration award at the request of the rival union – of its majority status and the existence of the 2009 collective agreement; (ii) the Constitutional Court also found that the arbitration award did not cause harm to the STOPGN in that it introduced amendments which were more favourable to the workers, in accordance with the provisions of the Labour Code; (iii) the Attorney-General’s Office did not engage in negotiations with the minority union STPGN; and (v) the agreement concluded with the STOPGN remains in force.
6. 492. With respect to granting a minority union the right to bargain collectively, the Committee observes that section 51 of the Guatemalan Labour Code confers collective bargaining rights on the most representative union. It also observes that, as indicated in the Constitutional Court judgment included in the Government’s reply, in the legal context of Guatemala, the existence of a majority union that was a signatory to an existing collective agreement was therefore a key element in the courts’ resolution of the economic and labour dispute initiated by the minority union at the Attorney-General’s Office. In this regard, the Committee notes with regret that the labour court took seven years to issue a verdict on the dispute initiated by the minority union at the Attorney-General’s Office and that it did not appear to take into consideration the existence of a majority union that was a signatory to an existing collective agreement. While noting the Government’s indication that the agreement concluded with the majority union at the Attorney-General’s Office remains in force, the Committee emphasizes that the promotion of collective bargaining requires a clear legal framework whose rules are applied consistently and promptly by the various judicial authorities.
7. 493. With regard to the incorporation of the draft collective agreement submitted by the STPGN and the existing agreement at the Attorney-General’s Office signed by the STOPGN into a single instrument through an arbitration award, the Committee understands that this arbitration award had the effect of unilaterally altering an existing, freely negotiated collective agreement, the validity of which was never questioned either before the labour administration or before the courts. In this regard, while noting the Government’s indication that the amendments introduced were supposedly favourable to the workers, the Committee recalls that state bodies should refrain from intervening to alter the content of freely concluded collective agreements [see Digest, op. cit., para. 1001].
8. 494. As to the alleged exclusion of SINTRACAPGUA from the social dialogue processes relating to the situation of domestic workers, the Committee notes the complainant organization’s allegation that the Government is acting in a discriminatory manner in failing to recognize the most representative nature of SINTRACAPGUA on account of its affiliation to the MSICG and that the Government, in the framework of the consultations relating to the possible ratification of Convention No. 189, has preferred to consult associations of a civil nature and less representative trade unions which are sympathetic to the Government. The Committee also notes the Government’s indication that it has met its obligations regarding tripartite consultation in relation to the submission of Convention No. 189, by conducting tripartite discussions with the inclusion of various organizations representing domestic workers’ interests. The Committee wishes to stress the importance, for the preservation of stable labour relations in a country, of regular consultations with employers’ and workers’ representatives, and that such consultations should involve all trade unions. In the present case, while noting that the Government has not explained its reasons for excluding SINTRACAPGUA from the social dialogue processes, the Committee observes that the complainant has not provided any objective information demonstrating that SINTRACAPGUA is more representative than the consulted organizations, and therefore the Committee lacks the information that would enable it to determine whether or not the alleged discrimination against SINTRACAPGUA has occurred. At the same time, emphasizing the difficult challenges relating to organization and representation which domestic workers’ unions must face owing to the very particular nature of this sector, the Committee invites the Government to ensure in the future that the various actors representing the aforementioned sector are extensively involved in the social dialogue processes relating to the situation of domestic workers.