Informe provisional - Informe núm. 383, Octubre 2017

1. 354. In its previous examination of the case, the Committee presented an interim report to the Governing Body [see 376th Report, paras 569–585, approved by the Governing Body at its 325th Session (October–November 2015)].
2. 355. Following this examination, the Workers’ Union of the Guatemalan Olympic Committee (SITRACOGUA) sent additional information in a communication dated 3 February 2016.
3. 356. The Government provided additional observations in communications dated 16 February 2016, 24 January and 2 August 2017.
4. 357. 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. Previous examination of the case

1. 358. In its previous examination of the case in October 2015, the Committee made the following recommendations on matters still pending [see 376th Report, para. 585]:
   • (a) The Committee requests the complainant organizations to indicate clearly the identity and the exact number of workers belonging to SITRACOGUA who were dismissed on 31 January 2014.
   • (b) The Committee strongly hopes that the legal challenge to the dismissal of the founding members of SITRACOGUA will soon be examined and that, in the event that the decision of first instance upholds the request for reinstatement issued by the General Labour Inspectorate, all necessary measures will be taken to ensure that the workers will be effectively and immediately reinstated. The Committee requests the Government to inform it urgently in this regard.
   • (c) The Committee strongly hopes that the investigation of the Office of the Attorney-General into the acts of discrimination, coercion and violence against members of SITRACOGUA will be completed without further delay. The Committee requests the Government to inform it urgently in this regard.
   • (d) The Committee requests the Government to ensure that the competent authorities have examined the aforementioned request for protection measures for the union leaders, Ms Marina García and Ms Suleima de León, in a timely, appropriate manner and to inform it urgently of the decisions taken in this regard.
   • (e) The Committee trusts that the interventions of the various aforementioned public institutions will ensure the free exercise of freedom of association and collective bargaining within the Guatemalan Olympic Committee.

B. Additional information from the complainant organizations

1. 359. In a communication dated 3 February 2016, SITRACOGUA provides additional information regarding the allegations examined by the Committee pertaining to this case. The complainants emphasize that: (i) 20 workers belonging to SITRACOGUA were dismissed on 31 January 2014; (ii) 16 of the 20 workers filed a request for reinstatement (Ms Suleima Adaia de León Segura, Ms Mariana Melina García Hernández, Mr Sergio Eduardo Golón Diaz, Ms Tania Rubi López Figueroa, Mr Charles Michel Legrand Aceituno, Ms Estela Marina Sosa Arroyave, Mr Pablo Renato García Flores, Ms Jessica Rosmery Lemus Herrera, Ms Carolina Raquel Pereira Mejía, Mr Marvin Geovani Gómez Alvarado, Ms Vivian Lucrecia Morales, Mr Hugo Esmaily Diaz de León, Mr Mario Antonio Mendoza Pineda, Ms Karyn Odilia Ochoa Ruano, Mr Shayne Mariveth Ruiz Palomo and Mr Pedro Herrarte Pineda); (iii) on 10 July 2015, the Constitutional Court rejected the appeal filed by the Guatemalan Olympic Committee (hereinafter “the sports institution”) against the registration of SITRACOGUA; (iv) there has been no response from the Office of the Prosecutor-General of Human Rights regarding the complaint made (by SITRACOGUA) on 5 March 2014; (v) a partial follow-up to the complaint was given before the Public Prosecutor’s Office on 25 November 2015, and the hearing before the second chamber of the criminal branch of the lower court with several judges was suspended, owing to the failure of the sports institution’s executive committee to appear; (vi) to date, the labour courts have not issued a ruling on the complaints filed by SITRACOGUA and its members because of the sports institution’s legal delaying tactics; (vii) the examination of the case, between 19 May and 7 December 2015, by the Committee for the Settlement of Disputes before the ILO in the Area of Freedom of Association and Collective Bargaining was totally ineffective, due to the employer’s lack of willingness to come to an agreement and the failure of the committee’s chairperson to take any action; (viii) the anti-union attitude of the leaders of the sports institution was made clear when they came before the committee and proposed that the workers who had been dismissed, despite enjoying immunity from dismissal, be reinstated on condition that they resign the following day; (ix) reprisals by the sports institution continue against members of the SITRACOGUA executive committee, including the two-day suspension from duty without pay imposed on the union’s finance secretary, Mr Joel Zeceña García, and the two-day suspension from duty without pay imposed on Mr Luis Arturo Chinchilla Gómez, for using the time granted to them for union activities to attend the criminal hearing on 25 November 2015 against the sports institution; during that hearing, Mr Chinchilla was subjected to intimidation by a person close to the institution’s general manager; and (x) on 11 December 2015, SITRACOGUA submitted a draft collective agreement on working conditions, but this did not lead to any negotiations with the sports institution; rather, the latter forwarded the draft to the Office of the Attorney-General, claiming it to be prejudicial in nature.

C. The Government's reply

1. 360. In its communications dated 16 February 2016, 24 January and 2 August 2017, the Government begins by providing information on the judicial proceedings relating to compliance with labour legislation raised in this case, noting that: (i) in a ruling dated 10 July 2015, the Constitutional Court rejected the appeal filed by the sports institution against the registration of SITRACOGUA; (ii) on 26 July 2016, the 12th labour and social welfare court issued a ruling on the appeal filed by Mr Joel Zeceña García and Mr Luis Arturo Chinchilla against the disciplinary sanctions (two-day suspensions) imposed on them by the sports institution, and ordered it to refrain from carrying out reprisals against SITRACOGUA members and to revoke and annul the aforementioned disciplinary sanctions imposed on Mr Joel Zeceña García and Mr Luis Arturo Chinchilla within three days; (iii) however, in a ruling dated 10 August 2016, subsequently confirmed in appeal, it declared inadmissible proceedings brought before the regular labour court by Mr Joel Zeceña García against the sports institution; (iv) the proceedings brought before the regular labour court by several of the sports institution’s workers to seek reinstatement are still pending while the Supreme Court of Justice examines in appeal the request for a joinder of proceedings filed by the sports institution; and (v) the complaint filed by SITRACOGUA with the Office of the Prosecutor-General of Human Rights was closed because the allegations made were already known to the labour and social welfare courts.
2. 361. The Government then provides information on the criminal proceedings instituted in connection with the allegations made in the present case, indicating that: (i) the third criminal court responsible for narcotics offences and crimes against the environment in Guatemala City, acting as an amparo court, in a ruling dated 14 April 2016 dismissed the criminal complaint filed by SITRACOGUA against the executives of the sports institution alleging offences of discrimination, violence against women and coercion, as it considered there were no grounds for subjecting the sports institution’s executives to a public oral hearing for offences against the institution’s union; (ii) the special investigation unit for offences committed against trade unionists within the Public Prosecutor’s Office filed an appeal against this ruling; and (iii) finding that there was insufficient factual evidence, the Public Prosecutor’s Office dismissed the complaint alleging intimidation and reprisals filed by Mr Zeceña against the executives of the sports institution after an individual close to the institution’s executive committee had apparently recorded Mr Zeceña during a criminal hearing.
3. 362. With regard to the request for protection measures for the union leaders Ms Marina García and Ms Suleima de León, the Government states that the Ministry of the Interior indicates that there has been no request for a risk assessment for these two individuals. The Government further notes that the unit for offences committed against trade unionists within the Public Prosecutor’s Office did request safety measures for Mr Joel Zeceña, Ms Dora Marina de León Benavente and Ms Magda Azucena Rosas Flores; however, it did not request safety measures for Ms Marina García and Ms Suleima de León, given that these two persons had filed complaints relating only to their dismissals and coercion against union members.
4. 363. Lastly, the Government states that: (i) the mediation process within the Committee for the Settlement of Disputes before the ILO in the Area of Freedom of Association and Collective Bargaining in connection with the dismissal of members failed because of the inflexible positions of the parties, and the committee’s independent mediator apologized to SITRACOGUA for failing to inform it of the outcome of the session of 2 July 2015; and (ii) the Office of the Attorney-General indicated that there is no record on file of any declaration to the effect that a collective agreement on working conditions signed between the sports institution and its workers’ union is prejudicial.

D. The Committee’s conclusions

1. 364. The Committee recalls that this case concerns the complaint of mass dismissals within a sports institution in retaliation for the establishment of the Workers’ Union of the Guatemalan Olympic Committee (SITRACOGUA), as well as acts of intimidation against the workers of that institution in order to pressure them into resigning from the union.
2. 365. With regard to the dismissal of the founding members of SITRACOGUA, the Committee notes the additional information submitted by that organization, stating that 20 workers belonging to SITRACOGUA were dismissed on 31 January 2014, 16 of whom went to court to seek reinstatement, and that, as a result of the employer’s delaying tactics, the courts had still not issued a ruling on the requests for reinstatement. The Committee also notes that the Government reports that, following several appeals filed by the sports institution, the Supreme Court’s examination in appeal of the request for a joinder filed by the sports institution is still pending – a preliminary step required before the courts can rule on the requests for reinstatement. The Committee also notes that both the complainants and the Government provide information on the mediation process that took place within the Committee for the Settlement of Disputes before the ILO in the Area of Freedom of Association and Collective Bargaining and on the failure to reach an agreement within this body.
3. 366. The Committee recalls that, in its previous examination of the case, it had taken note of the reports of the General Labour Inspectorate forwarded by the Government, which indicated that the dismissals had affected all the leaders of the recently created SITRACOGUA, the employer having ignored the temporary protection afforded to those leaders under Guatemalan legislation and that, as a result, the labour inspectors had issued a request for reinstatement. The Committee had also expressed its concern at the fact that, 18 months after the decision of the General Labour Inspectorate requesting the reinstatement of the founding members of SITRACOGUA, no ruling had been handed down in this case. The Committee notes with deep concern that, more than three-and-a-half years after the aforementioned dismissals and the corresponding request for reinstatement by the General Labour Inspectorate, procedural rulings are still pending that would enable the courts to examine the substance of the case. The Committee therefore finds itself bound, once again, to recall that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial, and that an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 820 and 826]. The Committee once again expresses the strong hope that the judicial challenge to the dismissal of the founding members of SITRACOGUA that affects not only the individuals concerned, but also the group of workers that they represent, is resolved as soon as possible. Considering both the existence of a decision of labour inspection and the excessive delay in the resolution of the aforementioned requests for reinstatement, the Committee requests the Government to examine the ways in which effect could be given to the decision of labour inspection. The Committee requests the Government to keep it informed of any progress made in this regard.
4. 367. In general, the Committee notes the repetitive character of the cases examined concerning Guatemala where it has had to observe the slowness of legal proceedings or the non execution of reinstatement orders of dismissed workers on trade union grounds (see Case No. 2948, Report No. 382, June 2017, paras 375–378; Case No. 2989, Report No. 372, June 2014, para. 316; Case No. 2869, Report No. 372, June 2014, para. 296). In this connection, the Committee recalls that, under the terms of the Memorandum of Understanding signed with the Workers’ group of the ILO Governing Body on 26 March 2013 further to the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), presented under article 26 of the ILO Constitution, the Government made a commitment to adopt “policies and practices to ensure the application of labour legislation, including … effective and timely judicial procedures”. In view of the above, the Committee once again urges the Government, in consultation with the social partners, to carry out a thorough revision of the procedural rules of the relevant labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
5. 368. With respect to the allegations of other anti-union acts within the sports institution, including the use of intimidation to pressure workers into resigning, the Committee takes note of the additional information submitted by the complainants stating that: (i) reprisals by the sports institution continue against SITRACOGUA union leaders, namely imposing a disciplinary sanction of suspension on two of them for carrying out their trade union activities; and (ii) the complaints lodged by the union with the criminal and labour courts in respect of the various anti-union acts committed by the sports institution have not, to date, led to any decisions being made by the relevant authorities. The Committee also notes that, according to information provided by the Government: (i) in a ruling on 26 July 2016, the 12th labour and social welfare court issued a ruling that the disciplinary sanctions of suspension of the employment contract without pay imposed on Mr Joel Zeceña García and Mr Luis Arturo Chinchilla were unlawful, and urged the sports institution to refrain from carrying out reprisals against SITRACOGUA members; (ii) another complaint filed with the labour court by Mr Joel Zeceña García was declared inadmissible in a first instance ruling on 10 August 2016. This ruling was later confirmed in appeal; and (iii) the complaint filed with the criminal court by SITRACOGUA against the executives of the sports institution alleging offences of discrimination, violence against women and coercion was dismissed by the third lower criminal court responsible for narcotics offences and crimes against the environment, in Guatemala City, in a ruling on 14 April 2016, the ruling having been appealed by the special investigation unit for offences committed against trade unionists; a second complaint alleging acts of intimidation filed by Mr Joel Zeceña García with the criminal court was closed by the Public Prosecutor’s Office on grounds of lack of evidence. Taking due note of the decisions already taken and of those still pending, the Committee requests the Government to keep it informed of the outcome of the appeal lodged by the Public Prosecutor’s Office in connection with the complaint filed with the criminal court by SITRACOGUA against the executives of the sports institution.
6. 369. With regard to the request for protection measures for the union leaders Ms Marina García and Ms Suleima de León, the Committee notes that the Government states that the special investigation unit for offences committed against trade unionists within the Public Prosecutor’s Office, although requesting safety measures for some SITRACOGUA members, did not request them for Ms Marina García and Ms Suleima de León, given that these two persons had filed complaints relating only their dismissals and coercion against union members. The Committee requests the Government to take the security measures that might be necessary should Ms García and Ms de León so request.
7. 370. Observing that the conflict following the establishment of SITRACOGUA remains unresolved almost four years after the creation of this trade union, the Committee once again trusts that the intervention of various public institutions will guarantee the free exercise of the right to freedom of association and collective bargaining within the sports institution.