Informe definitivo - Informe núm. 399, Junio 2022

1. 119. The complaint is contained in a communication dated 26 July 2016 submitted by the General Confederation of Workers of Guatemala.
2. 120. The Government sent its observations in communications dated 31 August 2017, 18 December 2019, 30 November 2020, 1 February 2022 and 26 April 2022.
3. 121. 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. 122. The complainant organization alleges that workers of the clothing enterprise C.S.A. Guatemala (hereinafter “the enterprise”) have attempted to form a trade union several times without success. It states that in order to form a union, national legislation requires a minimum of 20 workers, a number that is difficult to reach, and that on several occasions workers who had tried to form a union were dismissed.
2. 123. The complainant organization states that on several occasions the workers of the enterprise have appealed to the General Labour Inspectorate to investigate the violations of their labour rights, but the results have been negative. Faced with this situation, on 22 March 2016, the workers of the enterprise informed the General Labour Inspectorate of the establishment of an ad hoc committee of united workers of the enterprise (hereinafter “ad hoc workers’ committee”) and, on the same day, referred a collective socio-economic dispute to the labour and social welfare court.
3. 124. The complainant organization indicates that, on 15 April 2016, the tenth labour and social welfare court, which heard the collective dispute (file No. 01173-2016-03460), notified the ad hoc workers’ committee of its decision of 12 April 2016 in which it approved the termination of the dispute, attaching to this effect the notarized records of the ad hoc workers’ committee of 29 March 2016 that declared the total dissolution of that committee and the complete withdrawal of the collective dispute. According to the complainant organization, following several attempts to contact the workers to learn the reasons for such a decision, the workers indicated that at no time had they signed a withdrawal document. Consequently, the complainant organization filed a criminal complaint with the Public Prosecutor’s Office for an investigation of the facts.
4. 125. The complainant organization also alleges that the members of the ad hoc workers’ committee were forced to resign from their posts on 23 March 2016 and that, subsequently, as a result of communications with the enterprise GAP, the executive vice-president of the enterprise issued a circular informing the members of the ad hoc workers’ committee that they would be rehired. However, the enterprise denied entry to several former workers who presented themselves within the deadline set by the enterprise to be reinstated, so the intervention of the General Labour Inspectorate was requested to verify whether the enterprise was in compliance with the agreement. According to the complainant organization, the investigators appointed for this purpose never contacted the former workers, but instead addressed the representatives of the enterprise to draw up a report in their absence. It alleges that the enterprise continues to refuse to honour its offer.
5. 126. Lastly, the complainant organization alleges that some workers have been subject to all kinds of threats and reprisals on behalf of the enterprise.

B. The Government’s reply

1. 127. In its communication dated 31 August 2017, the Government reports on the status of the collective dispute presented by the ad hoc workers’ committee against the enterprise. In particular, it indicates that: (i) the second labour and social welfare court for the admission of lawsuits, when carrying out the procedures related to the collective dispute, through a decision dated 22 March 2016, warned the parties that neither of them could retaliate against the other and instructed the enterprise that any termination of contract must be authorized by the court that had heard the conflict. The court also ordered the ad hoc workers’ committee to clarify the number of workers who supported the conflict and the exact situation in which the controversy had arisen, as well as to provide concrete details regarding the request; (ii) having not provided the requested information within the time limit, the court instructed the members of ad hoc workers’ committee to appear before the court on 12 April 2016 to comply with the requirements under penalty of lifting the decreed preventive measures; (iii) in its decision of 12 April 2016 the tenth court of labour and social welfare takes note of and approves the withdrawal of the collective dispute filed by the representatives of the ad hoc workers’ committee; (iv) in a written communication dated 25 May 2016, the representatives of the ad hoc workers’ committee stated before the court that they no longer had any interest in continuing with the socio-economic dispute process, but claimed to have been intimidated, coerced and threatened by the enterprise to sign the notarized record of the general assembly in which it was unanimously agreed to dissolve the ad hoc workers’ committee and withdraw the dispute; and (v) in its decision of 26 May 2016 the court ruled that the allegations made by the representatives of the ad hoc workers’ committee regarding threats should be brought to the attention of the competent authority for investigation of the possible commission of a criminal offence.
2. 128. The Government indicates that, on the basis of information provided by the Office of the Public Prosecutor (report of the Office of the Public Prosecutor of 6 July 2017), on 11 July 2016 the complainant organization and the representatives of the ad hoc workers’ committee filed a criminal complaint against the enterprise and the notary before whom the notarized record of 29 March 2016 approving the withdrawal of the collective labour dispute had been signed. According to the complaint, the members of the ad hoc workers’ committee had been forced to sign blank sheets of paper and their signatures had subsequently appeared in the record of the general assembly of 29 March 2016, without them having been present at that meeting. The Government states that the Office of the Public Prosecutor, through the Special Investigation Unit for Crimes Against Trade Unionists of its Human Rights Division, sent an official request to the Special Criminal Investigation Division (DEIC) to interview the members of the ad hoc workers’ committee. According to the Public Prosecutor’s Office, two of the complainants when contacted expressed little interest in cooperating with the investigation and did not provide useful information.
3. 129. The Government adds that the labour inspector and the regional deputy delegate of the Ministry of Labour and Social Welfare visited the company on several occasions. During the inspection carried out on 8 July 2016, the personnel manager and the enterprise’s advisor appeared and stated that they were waiting for the former workers who wished to talk to the legal representative. The inspector recorded that he had seen an unauthenticated photocopy of the court decision approving the complete withdrawal of the collective dispute. Subsequently, on 26 July 2016, a hearing convened by the labour inspector took place at which the enterprise and five former workers who were members of the ad hoc workers’ committee were present. According to the report of the hearing: (i) the legal representative of the enterprise stated that on 18 March 2016 the workers had handed in their resignation letters, which resulted in cheques being issued for their wages on 23 March 2016; (ii) the former workers stated that they had been dismissed by the company on 23 March 2016 (up to that date their entry cards for the enterprise were stamped), they also indicated that the enterprise forced them to sign a document of resignation from their posts dated 18 March 2016, stressing that on 23 March 2016 they received their full fortnightly wages; and (iii) the former workers requested the enterprise to honour its offer to reinstate the workers dismissed on 23 March 2016 and asked for the administrative remedies to be exhausted so they could continue their action before the labour and social welfare courts.
4. 130. In a communication dated 18 December 2019, the Government provides updated information on the status of the criminal complaint filed against the enterprise for threats and coercion (report of the Public Prosecutor for Human Rights of 10 October 2019). According to this information: (i) it was not possible to locate the aggrieved persons and members of the ad hoc workers’ committee for the DEIC to carry out interviews because the addresses provided by the complainants did not exist or the persons sought no longer lived there; (ii) following the efforts of the DEIC to locate the aggrieved parties, two of the members of the ad hoc workers’ committee, who had been located, indicated that they had signed the document by informed and free choice and had received a settlement from the enterprise, while the other persons who were also listed as aggrieved parties did not appear when summoned at the addresses registered with the Office of the Superintendent for Tax Administration; and (iii) in a written statement dated 8 August 2017, the head of human resources of the enterprise indicated that he was entirely unaware of the fate of the 20 former workers mentioned above, who had ceased to work at the enterprise following a voluntary and written resignation.
5. 131. In its communication dated 30 November 2020, the Government indicates that, according to information provided by the Judicial Directorate for Labour Management of Guatemala (official communication No. 234-2020/DGL/orza of 26 October 2020) the collective dispute initiated by the ad hoc workers’ committee was terminated by withdrawal. The Government sends information provided by the General Labour Inspectorate regarding the circumstances of the termination of the employment contracts of the 20 members of the ad hoc workers’ committee (official communication No. DGD-IGT-594-2020 of 18 September 2020), in which there is no reference to any other action brought before the General Labour Inspectorate by members of the ad hoc workers’ committee subsequent to the hearing of 26 July 2016.
6. 132. Lastly, in its communication of 1 February 2022, the Government provides a report of the Office of the Public Prosecutor dated 27 January 2022 (official communication No. FDCOJS/G 2022-000024/mlmg) in which it is indicated that: (i) despite repeated summonses, the aggrieved parties did not appear at the interviews convened by the prosecutor’s office, without presenting any excuse for the failure to appear; and (ii) the case relating to the complaint against the enterprise was dismissed under article 24 ter of the Code of Criminal Procedure, which establishes that the offence of making threats is only prosecutable by private action, and the court proceedings established that it was not possible to proceed. In its communication of 26 April 2022, the Government stated that the investigating agency had taken the necessary, timely, useful and pertinent steps to ascertain the truth and that, in accordance with the provisions of the Code of Criminal Procedure, the case had been dismissed without having received, as of March 2022, any pronouncement to the contrary.

C. The Committee’s conclusions

1. 133. The Committee notes that the present case concerns allegations of violations of freedom of association in a maquila enterprise in the textile sector. The Committee notes the complainant organization’s allegations that: (i) on 22 March 2016, 20 employees of the enterprise established an ad hoc workers’ committee with the objective of presenting a collective dispute before the labour courts; (ii) on 12 April 2016, the tenth labour and social welfare court that heard the collective dispute approved by decision the withdrawal of the dispute on the basis of a notarized record of the general assembly of the ad hoc workers’ committee of 29 March 2016, in which it declared the total dissolution of the ad hoc committee and the complete withdrawal of the collective dispute against the enterprise; (iii) the members of the ad hoc workers’ committee subsequently stated that at no point had they signed a document of withdrawal and consequently the complainant organization and the representatives of the ad hoc workers’ committee filed a criminal complaint for the investigation of the facts; (iv) the members of the ad hoc workers’ committee had been forced to resign from their posts on 23 March 2016 and subsequently, following the union’s action with an international buyer, the enterprise offered to reinstate them, an offer that was not honoured; and (v) some workers have been subject to all kinds of threats and reprisals by the enterprise.
2. 134. The Committee notes that, in its reply to these allegations, the Government indicates that: (i) the legal proceedings related to the collective dispute were terminated by withdrawal by the members of the ad hoc workers’ committee. However, the representatives of the ad hoc workers’ committee affirmed before the court that heard the dispute that they had been intimidated, coerced and threatened by the enterprise to sign the notarized record of the general assembly of the ad hoc workers’ committee that dissolved the ad hoc committee and withdrew the dispute; (ii) on 11 July 2016 the complainant organization and the representatives of the ad hoc workers’ committee filed a criminal complaint against the enterprise for threats and coercion. According to information provided by the Office of the Public Prosecutor, it had not been possible for the criminal investigation to proceed because in some cases the complainants did not express further interest in cooperating with the investigation and in other cases it was not possible to obtain the statements of most of the persons listed as aggrieved parties, since they could not be located at the addresses they provided or, when summoned at the addresses registered with a public institution, they did not appear, despite repeated summonses; therefore the case had been dismissed without having received, as of March 2022, any pronouncement to the contrary; and (iii) during the hearing convened by the General Labour Inspectorate on 26 July 2016, the enterprise stated that the former workers handed in their letters of resignation on 18 March 2016 resulting in cheques being issued for their severance payments on 23 March 2016. The former workers indicated during the hearing that the enterprise had dismissed them on 23 March 2016, forcing them to sign a resignation letter dated 18 March 2016. The former workers added that the enterprise had not honoured its offer to reinstate them and asked that the administrative remedies be exhausted in order to present their complaint before the courts.
3. 135. In this context, the Committee notes that this case concerns two situations: (i) on the one hand, the termination of the collective dispute by withdrawal of the ad hoc workers’ committee, which according to the complainant organization, was a result of coercion by the enterprise; and (ii) on the other hand, the termination of the employment of the 20 members of the ad hoc workers’ committee.
4. 136. With regard to the termination of the collective dispute, the Committee observes that the tenth labour and social welfare court terminated the collective dispute on the basis of the notarized record of the general assembly of the ad hoc workers’ committee dated 29 March 2016 through which the members of the ad hoc committee declared their full withdrawal of the dispute, as well as the written communication presented by the representatives of the ad hoc committee on 25 May 2016 in which they stated that they had no interest in continuing with the collective socio-economic dispute. Furthermore, the court indicated to the workers that any criminal accusation regarding the use of coercive means in connection with the signing of the said act should be brought to the attention of the competent authority in criminal matters. Although the representatives of the ad hoc workers’ committee filed a criminal complaint against the enterprise for threats and coercion in relation to the notarized record of the general assembly of 29 March 2016, the Committee notes the prosecution service’s indications that some of the complainants did not show an interest in cooperating with the investigation and it was not possible to locate the rest of the alleged aggrieved parties or when they were summoned at the addresses registered with a public institution they did not appear, without providing any explanation. The Committee notes that for this reason it was not possible for the prosecutor’s office to proceed with the investigation since the offence was only prosecutable by private action. Consequently, the Committee will not proceed with the examination of this item.
5. 137. With regard to the termination of the employment of the 20 members of the ad hoc workers’ committee, the Committee notes that: (i) on the one hand, the complainant organization alleges that the workers were forced to resign on 23 March 2016, one day after the presentation of the collective dispute, and subsequently the enterprise informed them that they could be reinstated, a promise that it then did not honour. Furthermore, according to the allegations of five members of the ad hoc workers’ committee before the General Labour Inspectorate on 26 July 2016, they had been dismissed on 23 March 2016 and forced to sign letters of resignation dated 18 March 2016; (ii) on the other hand, the enterprise stated that the workers handed in their resignation willingly on 18 March 2016 and on 23 March 2016 they went to collect their severance cheques; and (iii) during the hearing on 26 July 2016 before the General Labour Inspectorate, the former workers requested that administrative remedies be exhausted and indicated that they would resort to judicial proceedings. While noting the differing accounts of the complainant organization and the enterprise regarding the circumstances and reasons for the termination of the employment contracts, the Committee notes that they coincide in stating that the 20 workers who participated in the establishment of the ad hoc workers’ committee stopped working for the enterprise. The Committee also takes due note of the Government’s indication that the workers requested the exhaustion of administrative remedies by the General Labour Inspectorate in order to pursue their claim regarding the termination of their employment contracts before the labour courts. Recalling that no person should be prejudiced in employment by reason of legitimate trade union activities and cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions [Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1077], the Committee trusts that the aforementioned request for exhaustion of administrative remedies addressed to the labour inspectorate has been complied with and that, if legal actions have been initiated against the termination of employment contracts of members of the ad hoc workers’ committee, they have been resolved promptly and in accordance with freedom of association.