Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 404, Octubre 2023

Effect given to the recommendations of the committee and the Governing Body

1. 40. The Committee last examined this case, which concerns allegations of anti-union acts, among them numerous anti-union dismissals in various public entities in the country, at its June 2014 meeting [see 382nd Report, paras 36–42]. On that occasion, the Committee once again: (i) requested the Government, in relation to the dismissal of a significant number of workers following the formation of the Sindicato Gremial de Trabajadores de la Estiba y Actividades Conexas en el Puerto Quetzal (SIGRETEACOPQ) and the various collective disputes brought before the courts with respect to the aforementioned public enterprise, to keep it informed of the results of the trials pending judgment and to provide it with detailed information on the reasons for non-compliance with the reinstatement orders that were not appealed; (ii) urged the Government to keep it informed of any administrative or judicial decisions issued in connection with the allegations of interference by the state-owned company in the extraordinary general assembly of one of the company’s unions, at which union leaders were dismissed; and (iii) urged the Government, with respect to the dismissal of 18 workers in the municipality of Comitancillo (San Marcos), to keep it informed of the judgment handed down on this matter by the Fourth Labor and Social Security Chamber, and to report on the reinstatement of these workers following the decision of the Constitutional Court dated 14 November 2006.
2. 41. The Government sent information on the various recommendations mentioned above through communications dated 7 May, 21 May, 24 June, 9 September and 12 November 2015, 1 October 2021 and 3 February 2023.
3. 42. Regarding the current status of the judicial proceedings related to the collective disputes filed in the public company and stevedoring companies, the Government informs the Committee that: (i) one of the collective disputes was admitted for processing on 31 July 2008 and, after having been notified in August 2008, the parties did not take any further steps, and therefore the process is pending; (ii) the second collective dispute, admitted for processing on 25 August 2009, was filed after the plaintiff withdrew in December 2012; and (iii) regarding the third collective dispute, after having been admitted for processing on 19 June 2008 and the parties were notified, they did not make any further action, so the process was filed.
4. 43. In relation to the allegations presented by the SIGRETEACOPQ union regarding anti-union dismissals in response to the creation of the aforementioned organization, the Government submits updated and detailed information on the reinstatement files of 19 workers provided by the Labor and Social Security Court of First Instance of the Department of Escuintla. According to the said information, the reinstatement of these workers, dismissed between June and July 2008, was not possible for reasons that include: the impossibility of the notifier to access the offices of the public company, the refusal of the referred company to accept the notification – which resulted in the fixing of fines – or because the offices of the company were not at the place indicated to carry out the reinstatement proceedings. According to the information sent, in view of the aforementioned difficulties: (i) eight complainants ended up desisting from their request for reinstatement, which resulted in the filing of their cases in December 2012; and (ii) in the other 11 cases, the court reports that the complainant has not taken any action with the court, nor has it made an appearance at the same, “for which reason the reinstatement complaint is in that state”.
5. 44. Regarding the allegations related to the interference of the state-owned company in the extraordinary general assembly of one of the unions of the state-owned company, the Government reports that the challenge filed by members of the union against the election of the new officers in the extraordinary general assembly was rejected by resolution on 10 June 2004, on the grounds that the procedures established in the union’s own by-laws for challenging the alleged facts were not followed, and that the administrative authority was not competent to resolve them. On 24 October 2005, the request for registration of the officers of the union in question was declared admissible. The Government informs the Committee that these resolutions are final and that there are no court rulings on this matter. The background of the file shows that other general assemblies were held with the election of officers without any opposition, and the registration operations were carried out for the following periods, up to the years 2018–20.
6. 45. Regarding the dismissal of 18 workers from the municipality of Comitancillo and their reinstatement, the Government claims that there were 12 dismissed workers who were part of the reinstatement ruling issued by the Constitutional Court on 14 November 2006. Seven of them were reinstated in their same positions. Of the remaining five, two received their benefits and compensation and three did not appear at the reinstatement proceeding. The remaining six workers who were not covered by the ruling were reinstated in their same positions and working conditions.
7. 46. The Committee takes due note of the information provided by the Government concerning the situation of the 18 dismissed workers of the municipality of Comitancillo, the collective disputes brought before the courts in relation to the public enterprise and the allegations relating to the extraordinary general assembly of one of its trade unions held in 2004.
8. 47. With regard to the allegations of numerous dismissals in retaliation for the creation of SIGRETEACOPQ, the Committee regrets to note that the information provided refers to only 19 of the 59 cases in which reinstatement had been ordered in the first instance without the public enterprise complying with the order and without the rulings having been appealed. In addition, the Committee notes with concern that none of the 19 reinstatement judgments for which the Government has provided information has been complied with. In this respect, the Committee recalls that it has considered that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1140]. The Committee also highlights that, if it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay [see Compilation, para. 1169]. The Committee also recalls that the need to ensure compliance in the country with court orders for reinstatement has been the subject of its repeated recommendations (see Case No. 3251, 400th Report, October 2022, paragraph 379; Case No. 2948, 382nd Report, June 2017, paragraph 379; Case No. 3062, 376th Report, October 2015, paragraph 585; Case No. 3042, 376th Report, October 2015, paragraph 568) and continues to be the focus of the Governing Body’s attention in the context of supporting the implementation of the 2013 road map on freedom of association (see GB/349/INS/10, October–November 2023). The Committee notes in this regard the creation, in 2023, of a court dedicated to hearing cases on disobedience to comply with reinstatement orders and notes as well that the Office is undertaking a technical diagnostic in this regard. The Committee welcomes the creation of the above-mentioned court and expects that it will contribute to ensuring effective compliance with court orders to reinstate workers dismissed for their union activity or affiliation.
9. 48. Based on the foregoing, in light of the facts examined in this case and having received no information from the complainant organizations since 2008, the Committee considers that this case is closed and will not pursue its examination.