Informe provisional - Informe núm. 393, Marzo 2021

1. 478. The complaint is contained in a communication dated 12 January 2016, presented by the Latin American and Caribbean Confederation of State Workers (CLATE) and the National Trade Union of Health Workers of Guatemala (SNTSG), and in a communication dated 19 February 2019, presented by the CLATE. In a communication dated 29 March 2016, the National Federation of Trade Unions of State Workers of Guatemala (FENASTEG) joined the initial complaint.
2. 479. The Government sent observations in communications dated 18 January 2017, 8 March 2018, 28 May 2019, 22 and 27 August 2019, 14 February 2020, 3 September and 17 December 2020.
3. 480. 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. 481. In a communication dated 12 January 2016, the complainant organizations allege that the Government instigated acts of interference and obstruction of collective bargaining in the public sector, particularly in the health sector, supposedly on the grounds of the financially burdensome nature of the collective agreements. They indicate that on 28 April 2015, the Office of the Comptroller-General lodged a complaint with the Public Prosecutor’s Office concerning the collective agreement on working conditions signed in August 2013 with the Ministry of Health, and that on 26 July that same year, the Ministry of Health did the same. The complainants denounce the fact that the State as employer, with the support of the business sector through the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), is proceeding to disregard the agreements and planning to annul them, also calling into question the trade unions’ ability to represent the interests of workers in the health sector. According to the complainants, there has been a de facto denial of the right to collective bargaining by the State, insofar as provision is made for the subsequent revision and annulment of agreements by the Government – in other words, one of the signatories of the agreements as the employer – which constitutes an unfair practice and demonstrates a clear attitude of bad faith, in violation of domestic and international standards.
2. 482. In a communication dated 20 January 2019 from the CLATE, supported by various national and international organizations – Public Service International (PSI), Global Nurses United (GNU) and the Federation of Public Service Employees (FeSP-UGT) of the General Union of Workers (UGT) of Spain – the complainant requests that evidence be included concerning the legal proceedings brought against various union officials of the SNTSG owing to their participation in the negotiation of the collective agreement signed in 2013 with the Ministry of Health, and concerning the subsequent arrest and detention of Mr Luis Antulio Alpirez Guzmán, Secretary-General of the SNTSG, and the organization secretary, Ms Dora Regina Ruano Saldaña. The CLATE indicates that Mr Javier Méndez Franco was detained alongside them and an arrest warrant was issued for Mr César Landelino Franco López, both of whom are legal advisers of the SNTSG. The trade union confederation considers that the legal proceedings concerning the aforementioned collective agreement are part of a government campaign to delegitimize collective bargaining in the public sector and undermine the trade union movement. In a communication dated 19 February 2019, the CLATE indicates that the union leaders have regained their freedom of movement, albeit only temporarily, as they are still subject to the legal proceedings. The situation of the legal advisers, however, remains unchanged.

B. The Government’s reply

1. 483. In a communication dated 18 January 2017, the Government indicates that the Office of the Attorney-General neither promoted nor attempted to obtain the annulment of the collective agreements on working conditions in the public sector through review processes not provided for under the law. However, the Office of the Attorney-General is empowered under the constitution to investigate or conduct a legal analysis, on its own initiative, of legal instruments that may contain or amount to unlawful clauses or articles, without that contravening, restricting or violating rights derived from ILO Conventions Nos 87 and 98. The Government emphasizes that its questioning concerns the misuse of public funds, insofar as the particular collective bargaining in the health sector was conducted in a political dynamic that did not serve the best interests of the State and especially the population that is directly dependent on the public health system, and did not comply with some formal and substantive requirements, as the CACIF noted.
2. 484. The Government adds that the newly elected authorities took over the Ministry of Public Health and Social Assistance as from 28 July 2016. The high-level authorities of that Ministry consider that, as long as the collective agreement on working conditions that is in force in the entity is not revised, amended or annulled by a competent authority, it is formally valid, insofar as the entity which is simultaneously a signatory cannot unilaterally declare it invalid. However, the Government states that the Ministry of Public Health and Social Assistance has a responsibility to verify that the administrative acts that serve as the basis for the signing of any type of agreement or pact constituting the basis for any matter related to the working conditions in the entity comply with the principle of legality. The corresponding institutional actions did not initiate a revision of the exercise of freedom of association and collective bargaining; on the contrary, they analysed the appropriateness under the current legislation of the administrative acts carried out by civil servants and public employees and which must be executed with due probity in the granting or recognition of labour rights. Thus, the Government considers that no finding of the Office of the Comptroller-General is aimed at revising the collective agreement on working conditions, as the purpose of audit processes is to ascertain the lawfulness of the procedure of the public servants and public employees who participate in the approval and application of administrative acts concerning working conditions.
3. 485. The Government goes on to refer to the legal proceedings on the protection of constitutional rights that were lodged by the SNTSG (File Nos 4661-2016, 4662-2016 and 5073-2016 of the Constitutional Court), which resulted in a ruling of 12 May 2016 upholding the legal basis of the legal review by the Office of the Comptroller-General. The Government also considers that the principle of good faith in collective bargaining in the public administration begins with strict legal compliance of the administrative acts of the public servants who sign and execute collective agreements. The Government underscores that, in the case of the 2013 agreement, there are flaws in the fulfilment of this condition and that the intention of the public authorities is to protect the right of freedom of association and collective bargaining and to ensure appropriate sustainability of the institutions that create decent working conditions.
4. 486. The Government refers to the following files: (i) File No. MP001-2015-39496 derives from the complaint lodged by the Office of the Comptroller-General stating that the signing of the collective agreement on working conditions by the Ministry of Public Health and Social Assistance and the union of workers of that Ministry violated the regulations on travel expenses contained in Government Decree No. 397-98, insofar as it increased excessively the travel expenses contemplated in the corresponding provisions of the collective agreement; and (ii) File No. MP001-2015-71161, which derives from the complaint lodged on 26 July 2015 by the former Minister of Public Health and Social Assistance, Luis Enrique Monteroso de Léon, arguing that although the collective agreement on working conditions was approved by the Ministry of Labour and Social Welfare, it affected the budget of the Ministry of Public Health and Social Assistance, as it had not undergone a technical assessment of its real budgetary and financial viability; the former Minister indicates that it affects the budget of the Ministry, as the professional who advised on the agreement was hired by and in the interests of the union itself, and the adviser’s extremely high fees were paid by the Ministry. The Government states that it does not promote the revision of collective agreements on working conditions; on the contrary, it has made efforts to ensure that all sectors involved in labour relations receive capacity-building and awareness-raising on the subject of collective bargaining, including with technical support from the International Labour Office.
5. 487. In a communication dated 28 May 2019, the Government provides additional information indicating that Prosecution Agency No. 1 of the Anti-Corruption Office has been assigned File No. MP001-2014-101645, to which further complaints have been linked, including those lodged by the Office of the Comptroller-General and the former Minister of Public Health and Social Welfare, Mr Luis Enrique Monterroso de León. The Government indicates that the allegations relate to purported anomalies during the process of negotiating, signing and executing the collective agreement on working conditions between the Ministry of Public Health and Social Assistance and the SNTSG in 2013. The alleged irregularities are limited to the unlawful insertion of a regulation on travel expenses into the collective bargaining instrument (whereby the members of the bargaining committee assumed a power to establish regulations that is the sole preserve of the President of the Republic), and the alleged hiring of the lawyer and notary César Landelino Franco López, and using state funds to pay him in the amount of 14,000,000.00 quetzales, without any legal justification for it. The Fifth Court of First Instance in Criminal Matters, Drug Trafficking and Environmental Crimes of Guatemala has jurisdiction over the investigation, under Case No. C-01077-2014-00480, and had the proceedings declared confidential in 2017, which was maintained January 2019, when the chief judge in the investigation was petitioned to issue arrest and search warrants. On 16 January 2019, the court issued 16 arrest warrants, including those authorizing the arrest of Mr Luis Antulio Alpirez Guzmán, Ms Dora Regina Ruano Saldaña, Mr Javier Méndez Franco and Mr César Landelino Franco López, on suspicion of participating in various offences, such as abuse of authority, misappropriation of funds, special cases of fraud and money laundering and other activities. In their capacity as members of the bargaining committee of the collective agreement on working conditions, Mr Luis Antulio Alpirez Guzmán and Ms Dora Regina Ruano Saldaña allegedly exceeded their authority by assuming regulatory powers, in that they included in the collective agreement the aforementioned travel expense provisions, arbitrarily and unlawfully increasing the per diem payments established by the relevant government agreement that was in effect at the time; consequently they were accused of having committed the offence of abuse of authority under the Penal Code. The Government states that in no way was the trade union activity of the SNTSG members criminalized, as the offences for which they were charged correspond to alleged criminal conduct, and hence circumstances that must be resolved before the relevant courts as part of the criminal proceedings relating to the various trade union members, which also include the former Minister of Public Health and Social Assistance, Dr Jorge Alejandro Villavicencio Álvarez. The Government goes on to indicate that the chief judge granted Mr Luis Antulio Alpirez Guzmán and Ms Dora Regina Ruano Saldaña alternative measures that do not restrict their trade union activity, as both may move freely within the national territory. In its communications dated 14 February and 3 September 2020, the Government states in relation to Public Prosecution File No. MP001-2014-101645 that the file has been split into two phases; the first phase, being handled under criminal case No. 01077-2014-0000480, in accordance with the ruling of the Third Chamber of the Court of Appeal in Criminal Matters, Drug Trafficking and Environmental Crimes of Guatemala, is currently suspended after a preliminary ruling was upheld on appeal. That judgment was impugned by the Public Prosecutor’s Office by means of an application for special judicial review, which is pending a ruling. The second phase of the case is at the investigation stage, the actions of which are confidential pursuant to article 314 of the Code of Criminal Procedure.
6. 488. With regard to the approval of public sector collective agreements, the Government informs the Committee in its communication of 22 August 2019 that, in late 2018, the Ministry of Labour submitted to the National Tripartite Committee on Labour Relations and Freedom of Association a draft government order for the purpose of establishing the formal requirements for approval of collective agreements in the public administration, for which tripartite consolidation is pending.
7. 489. In its communication dated 27 August 2019, the Government specifies that when employers and workers manage to reach agreement on the draft agreement on working conditions, they sign it and subsequently must apply the provisions of the Procedure on negotiating, standardizing and reporting collective agreements on conditions of work in an enterprise or specific manufacturing site, contained in Presidential Order No. 221-94, which is applicable in the absence of a specific standard for the public sector.

C. The Committee’s conclusions

1. 490. The Committee observes that the complainants in this case denounce: (i) a process of unilateral revision of the agreements in force in the public sector in the health service, and in particular of the collective agreement on working conditions signed in 2013 with the Ministry of Health, with the intention of annulling it, in open violation of the principle of good faith; and (ii) the criminalization of the trade union activity of members of the SNTSG.
2. 491. The Committee notes that the complainants allege that on 28 April 2015, the Office of the Comptroller-General lodged a complaint with the Attorney-General's Office concerning the 2013 collective agreement on working conditions in the health sector, and that on 26 July 2015, the Ministry of Health followed suit, which is tantamount to a de facto annulment of collective bargaining by the State, insofar as there is the possibility of subsequent revision and annulment of agreements by the Government.
3. 492. The Committee notes that the Government states that its objective is not to annul collective agreements on working conditions by means of revision processes not contemplated in the law and its questioning is instead directed at the misuse of public funds, and that the effectiveness of the right to bargain collectively in the public sector begins with ensuring that the public servants and actors representing the Government as an employer take sound and lawful decisions. In this regard, the Committee notes that the Government emphasizes that the Office of the Attorney-General is empowered under the constitution to investigate or conduct a legal analysis, on its own initiative, of legal instruments that may contain unlawful clauses or articles, without that contravening, restricting or violating any rights or principles derived from ILO Conventions Nos 87 and 98, such as the principle of good faith. The Committee also notes that the Government indicates that the legal proceedings on the protection of constitutional rights lodged by the SNTSG (Cases Nos 4661-2016, 4662-2016 and 5073-2016 of the Constitutional Court) resulted in a ruling of 12 May 2016 upholding the legal basis of the legal review by the Office of the Comptroller-General.
4. 493. The Committee also notes that, in the particular case of the 2013 collective agreement on working conditions in the health sector, the Government considers that there are flaws in legal compliance with the procedure for negotiating the agreement and that the financially burdensome nature of the 2013 agreement is questionable. The Committee notes that the Government refers in this connection to the following files: (i) File No. MP001 2015 39496 derives from the complaint lodged by the Office of the Comptroller-General stating that the signing of the collective agreement violated the regulations on travel expenses contained in Government Decree No. 397-98, in that it increased excessively the travel expenses contemplated in the corresponding provisions of the collective agreement; and (ii) File No. MP001-2015-71161, which derives from the complaint lodged on 26 July 2015 by the former Minister of Public Health and Social Assistance, arguing that although the collective agreement on working conditions was approved by the Ministry of Labour and Social Welfare, it affected the budget of the Ministry of Public Health and Social Assistance, as it had not undergone a technical study to assess its real budgetary and financial viability.
5. 494. The Committee takes note of the various evidentiary materials provided by the parties in relation to the first allegation in the present case. The Committee observes in particular that: (i) the collective agreement on working conditions in the health sector was signed by the authorities of the Ministry of Public Health and Social Assistance and the SNTG on 21 August 2013; (ii) the signed agreement was approved by the Ministry of Labour; (iii) in 2015, the agreement was subject to a legal challenge by the Office of the Comptroller-General and the former Health Minister as they considered that it increased disproportionately the travel expenses applied in the institution and that it had an excessive impact on the budget of the Ministry of Public Health and Social Assistance, as there had been no technical study on its budgetary and financial viability; and (iv) no information has yet been transmitted on the outcome of the aforementioned legal challenges, which are in "intermediate procedure status", as indicated by the Government in its communication dated 17 December 2020.
6. 495. The Committee recalls the importance it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Compilation of decisions of the Committee on Freedom of Association, sixth edition (2018), para. 1327]. The Committee therefore requests the Government to take all measures necessary to resolve the issues raised in relation to the content of the collective agreement on working conditions in the health sector to the extent possible through collective bargaining. Trusting that the principle will be fully applied, the Committee also requests the Government to inform it of any developments in the legal challenges on the validity of certain clauses of the said agreement.
7. 496. Observing in addition that, after it was approved by the Ministry of Labour, the health sector agreement was subject to a challenge alleging that there had been no technical study to ensure its financial viability, the Committee recalls that in Case No. 3094, it had requested the Government of Guatemala, in consultation with the trade unions concerned, to take the measures required to ensure that collective bargaining procedures in the public sector follow clear guidelines which meet both the requirements of financial sustainability and the principle of bargaining in good faith [see 377th Report, March 2016, para. 345]. In this connection, the Committee notes that the Government indicates that, in late 2018, the Ministry of Labour submitted to the National Tripartite Committee on Labour Relations and Freedom of Association a draft government order for the purpose of establishing the formal requirements for approval of collective agreements in the public administration, for which tripartite consolidation of the text was pending. Noting the efforts under way to strengthen the normative framework applicable to the conclusion of collective agreements in the public sector, the Committee trusts that the tripartite process that was initiated will soon lead to the adoption of a text that is in conformity with the principles of freedom of association and the effective recognition of collective bargaining.
8. 497. As to the criminal responsibility of particular individuals involved in the negotiation of the collective agreement, the Committee notes that the CLATE, supported by various national and international organizations, provided information on the criminal proceedings initiated against various union officials of the SNTSG owing to their participation in the negotiation of the collective agreement signed in 2013 with the Ministry of Health, and on the subsequent arrest and detention of Mr Luis Antulio Alpirez Guzmán, General Secretary of the SNTSG, and the organization secretary, Ms Dora Regina Ruano. The Committee notes that the CLATE indicated that Mr Javier Méndez Franco was arrested alongside them and an arrest warrant had been issued for Mr César Landelino Franco López, both of whom are legal advisers of the SNTSG. Lastly, the Committee notes that on 19 February 2019, the CLATE indicated that the union officials had regained their freedom of movement, albeit only temporarily, but the situation of the legal advisers remained unchanged.
9. 498. The Committee notes the information from the Government that Prosecution Agency No. 1 of the Anti-Corruption Office has been assigned File No. MP001-2014-101645, to which further complaints were linked, including those that were lodged by the Office of the Comptroller-General and the former Minister of Public Health and Social Welfare, Mr Luis Enrique Monterroso de León. The Committee notes that, according to the Government, the allegations relate to purported anomalies during the process of negotiating, signing and executing the 2013 collective agreement on working conditions; in addition to the aforementioned unlawful insertion of a regulation on travel expenses into the collective bargaining instrument, the irregularities refer to payment made from state funds to the lawyer and notary, César Landelino Franco López, in the amount of 14,000,000.00 quetzales, without any legal justification for it. The Committee notes that the Government informs it that: (i) the Fifth Court of First Instance in Criminal Matters, Drug Trafficking and Environmental Crimes of Guatemala has jurisdiction over the investigation, under Case No. C-01077-2014-00480, having had the proceedings declared confidential in 2017, which was maintained until January 2019, when the chief judge in the investigation was petitioned to issue arrest and search warrants; (ii) on that date, the court issued 16 arrest warrants, including those authorizing the arrest of Mr Luis Antulio Alpirez Guzmán, Ms Dora Regina Ruano Saldaña, Mr Javier Méndez Franco and Mr César Landelino Franco López; and (iii) the chief judge granted Mr Luis Antulio Alpirez Guzmán and Ms Dora Regina Ruano Saldaña alternative measures that do not restrict their trade union activity, as they may move freely within the national territory. The Committee also notes that the Government indicates in its communications of February and September 2020 that prosecution file No. MP001 2014 101645 has been split into two phases; the first, which is being handled under criminal case No. 01077-2014-0000480, in accordance with the ruling of the Third Chamber of the Court of Appeal in Criminal Matters, Drug Trafficking and Environmental Crimes of Guatemala, is currently suspended as a preliminary ruling had been upheld on appeal. That judgment had been impugned by the Public Prosecutor's Office by means of an application for special judicial review, which was still pending a ruling, as confirmed by the Government in its communication dated 17 December 2020. The second phase of the proceedings is at the investigation stage, the actions of which are confidential pursuant to article 314 of the Code of Criminal Procedure.
10. 499. The Committee recalls that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation, para. 133]. The Committee notes that part of the criminal proceedings is pending, while other aspects are still at the investigation stage, which are confidential pursuant to article 314 of the Code of Criminal Procedure. The Committee observes, however, that the courts have not yet ruled on the charges against the SNTSG officials. Trusting that, in full application of the principle of freedom of association, the courts will rule on the matter in the near future, the Committee requests the Government to provide detailed information in this regard. In particular, it requests the Government to provide updated information on the situation of Mr Luis Antulio Alpirez Guzmán, General Secretary of the SNTSG, and the organization secretary, Ms Dora Regina Ruano Saldaña, who temporarily regained their freedom of movement in February 2019. The Committee also requests the Government to provide information on the situation of Mr Javier Méndez Franco and Mr César Landelino Franco López, both of whom are legal advisers of the SNTSG.
11. 500. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office with a view to addressing the Committee’s recommendations.