Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 400, Octubre 2022

1. 316. The complaint is contained in 12 communications by the Guatemalan Union, Indigenous and Peasant Movement (MSICG) dated 27 and 29 April and 2, 3 and 4 May 2016, and 31 January, 10 and 20 February, 23, 25 and 30 May and 2 June 2017.
2. 317. The Government of Guatemala sent its observations on the allegations in 15 communications dated 30 October 2017, 15 May, 21 August, and 13 and 17 September 2019, and 29 January, 1 and 17 February, 29 March, 12, 23 and 26 April, 5 and 7 May 2021, and 30 September 2022.
3. 318. 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), but has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 319. In its communications dated 27 April 2016 and 25 May 2017, the complainant organization alleges that the State of Guatemala maintains an anti-union policy of mass dismissals of workers when they attempt to establish trade union organizations or exercise their right to collective bargaining. With regard to the Ministry of Culture and Sport, the complainant organization alleges in particular that: (i) after the establishment of the Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Culture and Sport (SINTRADEPORTES) on 24 June 2015, the employer dismissed the workers who had participated in its creation; (ii) requests for reinstatement submitted by the dismissed workers are being processed by the labour and social welfare courts of the department of Guatemala; (iii) the reinstatement orders issued at first instance have not been complied with; and (iv) the Ministry of Culture and Sport has begun transferring the other trade union members to different locations, has substantially changed their working conditions, and has mistreated them as a means of pressuring them into leaving their positions.
2. 320. The complainant organization also alleges that the Ministry of Culture and Sport filed an appeal for revocation against the registration of SINTRADEPORTES, which has made it impossible to register the leaders of the trade union. It indicates that, in February 2016, SINTRADEPORTES filed an objection with the General Labour Directorate, but that, to date, there has been no notification of a settlement. The complainant organization states that, consequently, the refusal to register the trade union officials has been illegally maintained, thus preventing the trade union from functioning despite the fact that it has legal personality.
3. 321. In its communications dated 29 April 2016 and 10 February 2017, the complainant organization states that: (i) on 5 November 2015, the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic (SITRASEC) filed a socio-economic collective dispute in response to the refusal by the employer to directly negotiate a list of claims submitted by SITRASEC; (ii) the first labour and social welfare judge for the admission of claims warned the parties not to retaliate against each other, and ordered that no dismissals should be carried out without an order by the competent judge within the procedure established by law; (iii) despite these preventive measures, the Secretariat of Public Works of the First Lady of the Republic of Guatemala proceeded to unlawfully carry out the dismissals of workers belonging to SITRASEC in December 2015 and January 2016, as an act of anti-union retaliation, in order to weaken the trade union’s leverage in the filing of the collective dispute; (iv) during the reinstatement proceedings before the labour and social welfare courts, 14 workers obtained favourable rulings in the courts of first instance, which were confirmed by the Court of Appeal; and (v) the employer refused to follow the reinstatement orders, and filed an application for proceedings for the protection of constitutional rights (amparo) before the Supreme Court of Justice.
4. 322. In its communications dated 27 and 29 April 2016, the complainant organization alleges that, with the aim of discouraging workers from joining trade unions and persuading them not to participate in collective bargaining processes, the Government has adopted a hiring policy involving the simulation of industrial relations, either by concealing the employment relationship under non-employment hiring arrangements, or by simulating the temporary nature of contracts, with fixed-term contracts being established despite the continuous and permanent nature of the services for which the workers are hired. In its communication of 20 February 2017, the complainant organization reports the use of this strategy by the Ministry of Education with technicians specialized in secondary-level distance learning, who were reportedly subject to precarious hiring procedures.
5. 323. The complainant organization also reports the close relationship between the Ministry of Education and the Education Workers’ Trade Union of Guatemala (STEG), which imposes a dialogue between the technicians specialized in secondary-level distance learning and STEG. In this regard, it states that: (i) joint boards have been established between the employer and delegates of STEG, which is a trade union under the employer’s control; (ii) these delegates may intervene in the selection of staff for the allocation of full-time positions, and have the authority to transfer workers to other workplaces; (iii) this situation provides STEG with a clear organizational advantage over other trade unions, and enables it to put pressure on workers to join STEG and to refrain from joining trade union organizations of their own choosing; and (iv) STEG has used these powers to repress workers who have opposed its claims.
6. 324. In its communication of 2 May 2016, the complainant organization alleges that: (i) the Union of Workers and Employees of the Municipality of Mixco submitted a list of claims to its employer, the municipality of Mixco; (ii) after the refusal by the employer to engage in such negotiations, the trade union filed a socio-economic collective dispute on 13 January 2016 before the First Labour and Social Welfare Court, which warned the parties not to retaliate against each other; (iii) the mayor of the municipality of Mixco requested the trade union to abandon the collective dispute, in order to give it the freedom to dismiss municipal workers to ensure positions for persons who had supported the current authorities during the recent electoral process; and (iv) when the trade union refused to do so, the employer launched a campaign of stigmatization against the exercise of legitimate trade union activities.
7. 325. According to the complainant organization, as part of the aforementioned campaign, the mayor of the municipality of Mixco, through publications on his official Facebook page, called on the population to take action and react against the legitimate actions of the trade union, openly qualifying the exercise of trade union rights as acts of opposition to the development of the municipality. The complainant organization also denounces publications in other media, in which the above-mentioned mayor led the population to believe that the trade union was responsible for acts of violence that occurred in the municipality. It indicates that, in response to the media’s refusal to publish its own version, the trade union filed appeals before the competent courts in order to exercise its constitutional right to clarification and reply. It also indicates that the acts carried out by the mayor were the subject of a criminal complaint that was referred to the unit for offences committed against trade unionists within the Public Prosecutor’s Office.
8. 326. The complainant organization indicates that the trade union filed retaliation claims before the Fifth Labour and Social Welfare Court, and that, despite the fact that the claims should have been settled within 15 days, they have yet to be resolved. It states that, in response to the use of legal mechanisms by the trade union, the employer has initiated various administrative proceedings in order to dismiss trade union officials. The complainant organization further maintains that, after the trade union reported the retaliation to which it was being subjected to the General Labour Inspectorate and the employer expressly recognized that the publications had been made in response to the filing of the collective dispute, the latter proceeded unilaterally and without notification to deduct almost the totality of the wages of the trade union officials, and even more from the general secretary of the trade union.
9. 327. In its communication of 3 May 2016, the complainant organization maintains that: (i) on 5 January 2016, the Union of Workers of the Municipality of San Lucas Tolimán in the department of Sololá (SITRAMSALT) was established; (ii) when it learned of the imminent establishment of the trade union, the employer intimidated workers so that they would abandon the process and, after these measures failed, it dismissed 13 workers who had participated in the establishment of the trade union in January and February 2016; (iii) complaints and requests for reinstatement were filed before the Labour and Social Welfare Court of First Instance of the municipality of Santiago Atitlán in the department of Sololá; (iv) on 21 April 2016, the judge proceeded to enforce the reinstatement of the majority of the dismissed workers; and (v) on 22 April 2016, the workers reported to their place of work, but were unable to take up their duties, as the staff hired by the mayor as their replacements had closed the offices to them.
10. 328. The complainant organization states that, when the workers attempted to return to their place of work: (i) one of them, Mr Gilberto Cosigua Panjoj, was physically assaulted by the mayor, and was insulted and threatened with death by the persons accompanying the mayor; (ii) Mr Panjoj was locked in the offices of the municipal treasury by the mayor and another person, and was illegally detained there for over 30 minutes; and (iii) in the meantime, the mayor made threatening statements to the workers and to the judge who had ordered their reinstatement. The complainant organization also alleges that the mayor summoned the population in front of the municipal council building to criminalize and stigmatize the workers, and to encourage the population to attack them. The complainant organization states that, owing to the above facts, it filed a complaint with the Public Prosecutor’s Office, requesting security measures.
11. 329. In its communication of 4 May 2016, the complainant organization maintains that: (i) workers from the municipality of Tiquisate established the Union of Organized Municipal Employees of Tiquisate in the Department of Escuintla (SEMOT) on 20 October 2015 in response to systematic violations of their labour rights, and this union was registered by the Ministry of Labour and Social Welfare on 22 January 2016; (ii) with the aim of pressuring workers to leave the trade union, the employer suspended the payment of their wages in full as from November 2015; (iii) the mayor and the members of the municipal council also harassed and threatened workers, demanding that they leave the trade union; (iv) after 29 workers left the trade union, the employer proceeded to pay their wages; (v) the wages of 102 workers continue to be withheld illegally, as they refuse to leave the trade union; and (vi) the mayor hired other workers to carry out the duties of the unionized workers, which even led to violence in some cases when the unionized workers were removed from their posts.
12. 330. In its communication of 31 January 2017, the complainant organization indicates that, in May 2016, it initiated ordinary labour proceedings before the Labour and Social Welfare Court of First Instance in the department of Escuintla, in order to demand the payment of outstanding wages and other benefits not received by the unionized workers. In this respect, it states that although, to date, the disputes have not been settled, each time the workers report to the court, two judges request them to withdraw their claims, pointing out that they are going to lose the proceedings in any case.
13. 331. Furthermore, the complainant organization maintains that, in June 2016, the employer followed through on its earlier threats and dismissed 81 unionized workers. It indicates that the dismissed workers filed an amparo appeal before the Pluripersonal Court of First Instance for Labour and Social Welfare of Escuintla, but that the appeal was rejected in a ruling dated 22 December 2016. It states that this decision was appealed by the above-mentioned workers before the Constitutional Court.
14. 332. In its communication of 23 May 2017, the complainant organization states that, when the new Chief Public Prosecutor and Head of the Public Prosecutor’s Office came into office, she obtained the necessary legal authorization and dismissed three leaders of the Union of Workers of the Criminal Investigation Directorate of the Public Prosecutor’s Office (SITRADICMP), including its disputes secretary, Mr José Reyes Canales, for failing to comply with transfers to remote parts of the country after the establishment of the trade union on 29 March 2007. It states that these trade union leaders filed amparo appeals before the Constitutional Court and were reinstated after rulings were issued ordering their reinstatement.
15. 333. The complainant organization also alleges that: (i) the employer uploaded pornography onto the shared computers on which the leaders and several members of SITRADICMP worked; (ii) two members of SITRADICMP were dismissed in relation to this fabrication; (iii) these members challenged their dismissals before the courts and were reinstated after the Constitutional Court issued rulings in their favour; (iv) after lengthy judicial proceedings to obtain the necessary authorization, Mr Reyes Canales was also dismissed; (v) Mr Reyes Canales filed an appeal for review with the Chief Public Prosecutor, but the appeal was declared inadmissible by a decision dated 26 April 2017; and (vi) Mr Reyes Canales also filed an amparo appeal before the Supreme Court of Justice, which is being processed.
16. 334. The complainant organization also states that the Chief Public Prosecutor initiated, through her agents and various NGOs, a stigmatization campaign against the MSICG and SITRADICMP, associating them and their leaders with organized crime. It maintains that the Chief Public Prosecutor attempted to take control of SITRADICMP, by encouraging a group of members of the trade union, with the prior agreement of the authorities of the Public Prosecutor’s Office, to simulate the holding of a trade union assembly and to draft minutes containing false facts. It states that criminal proceedings were initiated in this regard and that, on 12 May 2015, the Third Criminal Court for Drug Trafficking Offences and Environmental Crimes convicted, for the offence of continued falsification of facts, the former members of the trade union who drafted the false documents, and that the ruling was upheld by the Judicial Chamber. According to the complainant organization, the criminal investigation should also have been directed against the Chief Public Prosecutor, her lawyer and her private secretary, but the corresponding officer from the Public Prosecutor’s Office flatly refused to conduct the corresponding investigation and obstructed the criminal prosecution of the above-mentioned members of the trade union.
17. 335. In its communication of 30 May 2017, the complainant organization states that: (i) the National Office of the Attorney-General (hereafter “the Attorney-General’s Office” attempted to take control of the Union of Organized Workers of the National Office of the Attorney-General (STOPGN) by placing persons on its executive committee and advisory board during an extraordinary general assembly that had been convened for its trade union elections; (ii) after the failure of this assembly due to lack of quorum, persons associated with the employer convened another assembly in the name of STOPGN; (iii) when this strategy failed and STOPGN convened a new assembly, the employer attempted to block the participation of members of the trade union, and the same persons associated with the employer invaded the headquarters of the MSICG, where the assembly was being held, to insult and threaten the officials of the trade union, and to attempt to take MSICG documentation from them by force; (iv) during this process, the head of services of the Attorney-General’s Office threatened to dismiss and to assassinate several members of the trade union; and (v) STOPGN reported these events to the General Labour Directorate and the General Labour Inspectorate.
18. 336. Furthermore, the complainant organization alleges that the Attorney-General’s Office uses the media to promote campaigns of stigmatization against trade unionism and collective bargaining, and that it is taking advantage of this situation to promote the approval of the Basic Act of the National Office of the Attorney-General, with the aim of legislatively and unilaterally repealing the protections of workers arising from collective agreements on working conditions.
19. 337. In its communication of 2 June 2017, the complainant organization states that the National Institute of Forensic Sciences (hereafter “INACIF") is a public and autonomous institution responsible for carrying out expert work for the courts of the country. The complainant organization alleges that: (i) the registration of the Union of Workers of the National Institute of Forensic Sciences of Guatemala (SINTRAINACIF) on 14 May 2015 was followed by the dismissal of its organizers; (ii) although the organizers were reinstated, a policy of persecution, harassment and discrimination continued to be implemented against the trade union; (iii) workers are constantly threatened with dismissal or transfer to remote parts of the country if they join SINTRAINACIF; and (iv) the employer coerces members to leave the trade union if they wish to receive a promotion.
20. 338. The complainant organization also alleges that: (i) INACIF attempted to illegally remove Mr Juan Saca Aguilar, information and propaganda secretary of SINTRAINACIF, from his place of work; (ii) after filing multiple complaints, Mr Saca Aguilar was able to return to his place of work, but the employer stopped providing him with instruments for work and assigning him duties; and (iii) the employer initiated proceedings before the labour and social welfare courts to dismiss Mr Saca Aguilar, on the grounds that he does not report for work. The complainant organization also maintains that the employer changed the hours of Mr Marlon Alfonso Martínez, agency secretary of SINTRAINACIF, and assigned him additional duties to prevent him from participating in the meetings of the trade union’s executive committee.
21. 339. Furthermore, the complainant organization states that INACIF encouraged ordinary labour proceedings, requesting the cancellation of SINTRAINACIF’s registration before the Third Labour and Social Welfare Court, on the grounds, inter alia, that the workers who participated in its establishment had been hired on a temporary basis. According to the complainant organization, INACIF lacks procedural legitimacy for the submission of such a request, and the processing of the request legitimizes the interference of the employers in the exercise of freedom of association.

B. The Government’s reply

1. 340. In its communication of 17 September 2019, the Government reports that SINTRADEPORTES was registered on 18 January 2016, and that its legal personality remains valid, as there are no pending appeals or notifications. In a communication dated 30 September 2022, the Government also provides information on the requests for reinstatement filed by ten dismissed workers. It indicates that: (i) eight of the workers were reinstated after the issuance of reinstatement orders in their favour; (ii) one worker withdrew his request; and (iii) in another case, the worker was not reinstated, as an appeal filed by the employer against the first instance decision in her favour was declared admissible by the Judicial Chamber.
2. 341. In its communication of 17 February 2021, the Government provides information obtained from the Seventh Pluripersonal Labour and Social Welfare Court regarding eight of the SITRASEC workers who were dismissed. It indicates that: (i) six workers were reinstated and paid their outstanding wages and other employment benefits; (ii) one worker was reinstated and is in the process of receiving her outstanding wages and other employment benefits; and (iii) it was not possible to verify the reinstatement of one worker, as she did not report to the judicial body for the coordination of her reinstatement.
3. 342. In its communication of 30 September 2022, the Government forwards information obtained from the Pluripersonal Court of First Instance for Labour and Social Welfare of the department of Santa Rosa, according to which: (i) 68 secondary-level distance learning workers of the Ministry of Education filed ordinary labour proceedings which were declared admissible on 11 July 2016, as a continuous, uninterrupted and indefinite employment relationship between the workers and the Ministry was proven; and (ii) the Ministry was ordered to grant them indefinite contracts in the budget line allocated for this purpose, with the same functions for which they had been hired year after year.
4. 343. In its communication of 23 April 2021, the Government states that the Union of Workers and Employees of the Municipality of Mixco brought legal proceedings against the enterprise, Guatevisión, before the Fifth Justice of the Peace Civil Court regarding the constitutional guarantee of clarification and reply of the individuals concerned by a publication, and that these proceedings remain pending. Regarding the retaliation claims filed by the trade union, the Government indicates that: (i) when the First Labour and Social Welfare Court processed the collective dispute, the parties were warned not to retaliate against each other and that any termination of a labour contract should be authorized by a competent judge; (ii) on 20 September 2018, the parties reached an understanding on a collective agreement on working conditions; (iii) on 4 December 2018, the previously decreed preventive measures were annulled and lifted; and (iv) specific actions and measures have been taken to promote, encourage and protect the right to collective bargaining in the municipalities since 2020, through a request for technical and financial support in order to hold a workshop on collective bargaining and social dialogue in collaboration with the ILO.
5. 344. In its communications of 23 April 2021 and 30 September 2022, the Government provides information on the reinstatements of the 13 dismissed workers that are being processed by the Labour and Social Welfare Court of First Instance of the municipality of Santiago Atitlán in the department of Sololá. It indicates that, in the 13 cases, the Public Prosecutor’s Office recorded or was ordered to record an act of disobedience, as the municipality of San Lucas Tolimán did not comply with the reinstatement order.
6. 345. Regarding the criminal complaint filed before the Public Prosecutor’s Office, the Government states that: (i) preliminary proceedings were filed against the mayor of the municipality of San Lucas Tolimán, but the mayor died, which extinguished his criminal liability; (ii) as part of the investigations, it was determined, in accordance with witness statements, that the events reported occurred with the participation of another person; (iii) however, it was not possible to prove this, as the injured party, Mr Panjoj, did not come forward to testify, even though he had been duly summoned to the corresponding public prosecutor’s office; and (iv) it was therefore not possible to bring the matter before the courts.
7. 346. In its communications of 29 January 2021 and 30 September 2022, the Government indicates that, on 20 December 2015, SEMOT filed a complaint against the General Labour Inspectorate with regard to the withholding of the wages of its members. It maintains that, after a hearing held on 3 February 2016, the General Labour Inspectorate warned the employer to refrain from retaliation of any kind against the members of the trade union.
8. 347. In its communication of 12 April 2021, the Government indicates that an amparo appeal filed by the 81 dismissed workers (who had been appointed by the former mayor between October 2015 and January 2016) against the municipal council and the mayor of Tiquisate, was declared inadmissible in a ruling dated 22 December 2016. It states that, following an appeal, the decision was upheld by the Constitutional Court in a ruling dated 3 July 2017.
9. 348. In its communication of 30 October 2017, the Government forwards the observations of the Public Prosecutor’s Office on the allegations made against it. Regarding the dismissal of Mr Reyes Canales as a result of the discovery of pornographic material, the Public Prosecutor’s Office states that: (i) following disciplinary proceedings against him, a decision dated 21 July 2009 was issued, which established that he should be removed from his post by means of justified direct dismissal; (ii) by virtue of the right to immunity of Mr Reyes Canales, and in strict observance and application of the constitutional principles of the right to defence and due process, it brought the matter before the judicial body with the aim of requesting authorization to terminate the employment relationship; (iii) its claim was heard by the competent jurisdictional bodies and was finally resolved by the Labour and Social Welfare Appeals Court, which declared it admissible on 5 April 2017; and (iv) in compliance with the above, Mr Reyes Canales was dismissed on 20 de April 2017. The Government concludes that, given that judicial authorization was obtained before the dismissal of Mr Reyes Canales, no violation of freedom of association by the Public Prosecutor’s Office can be observed.
10. 349. In its communications of 21 August 2019 and 13 September 2019, the Government confirms that, after Guatemalan domestic legal proceedings had been exhausted, Mr Reyes Canales was dismissed, as pornographic material had been found on the computer equipment that had been allocated to him. It also confirms that the other two leaders and the two members of SITRADICMP who had been dismissed by the Public Prosecutor’s Office were reinstated following the issuance of judicial decisions in their favour.
11. 350. In its communications of 30 October 2017 and 1 February 2021, the Government forwards the observations of the Attorney-General’s Office on the allegations made against it. The Attorney-General’s Office categorically denies the alleged interference in the election of STOPGN officials, emphasizing that it did not intervene in STOPGN’s membership procedures or in the organization of its assemblies. It states that the persons involved were acting in their personal capacity and, under no circumstances, did they represent the will or opinion of the employer. Regarding its head of services, the Attorney-General’s Office indicates that, at the time of the alleged events, he was serving as a member of STOPGN’s advisory board, and therefore represented the interests of the trade union and not those of the employer.
12. 351. Concerning the alleged stigmatization campaigns, the Attorney-General’s Office states that it is totally untrue that it is attacking collective bargaining in the media. It further indicates that Decree No. 512, which serves as a legal basis for its actions, is outdated, and that, consequently, in 2016 and 2017, Bills Nos 5154 and 5156, which put forward the Basic Act of the National Office of the Attorney-General, were tabled. The Attorney-General’s Office states that these Bills are being examined in the Congress of the Republic of Guatemala, and emphasizes that it respects the right to collective bargaining.
13. 352. In its communication of 30 October 2017, the Government provides the observations of INACIF, stating that its current administration, which began on 18 July 2017, cannot be held accountable for internal policies related to past administrations, but that it has implemented a policy for respecting freedom of association and all rights deriving from it. It indicates that, in the current administration, any worker who has the appropriate profile and the respective qualifications is taken into consideration for promotion, and that several unionized workers have been promoted.
14. 353. Regarding the allegations related to Mr Saca Aguilar, INACIF maintains that he did not perform his duties and received remuneration without consideration of any kind, which constitutes gross misconduct, but maintains that it has respected his right to defence and due process. Concerning the allegations related to Mr Alfonso Martínez, INACIF indicates that the criteria for the allocation of shifts are not based on any type of retaliation. It states that the number of staff is too limited to carry out the functions that it performs, and that priority is given to the interests of the Guatemalan population, without preventing workers from participating in trade union activities. With regard to the proceedings requesting the cancellation of SINTRAINACIF’s registration, INACIF states that the fact that an employer has recourse to the labour justice bodies of the country does not constitute a violation of any rights of workers, but rather guarantees the protection of their rights.
15. 354. In its communication of 15 May 2019, the Government states that ordinary labour proceedings concerning the request for authorization to dismiss Mr Saca Aguilar are still being processed by the First Labour and Social Welfare Court. It also states that, on 22 September 2017, a claim filed by INACIF against the decision ordering the registration of the trade union was declared inadmissible by the Third Labour and Social Welfare Court, and that this decision was upheld on 8 May 2018 by the Fifth Labour and Social Welfare Chamber following an appeal filed by INACIF.

C. The Committee’s conclusions