Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 405, Marzo 2024

1. 368. The Committee last examined this case at its October 2015 meeting, when it presented an interim report to the Governing Body [see 376th Report, adopted by the Governing Body at its 325th Session (29 October–12 November 2015), paras 488-568]  .
2. 369. The complainant submitted additional allegations in communications dated 15 December 2015; 3 and 30 January, 23 May and 1 June 2017; and 30 and 31 January, and 25 October 2018.
3. 370. The Government sent its reply in communications dated 4 November 2015; 24 February, 13 and 29 April, and 21 December 2016; 7 March and 31 May 2018; 6 February, 3 and 22 May, 28 June, 5, 19 and 30 August, 3, 10 and 13 September 2019; 14, 17, 20 and 31 January, and 24 February 2020; 26 and 29 January, 5 and 15 February, 23 March, 5 April, 7 May (two communications), 7 and 18 October, and 19 November 2021; 16 December 2022; and 14 April, 12 May and 11 September 2023; and 5 January 2024.
4. 371. 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. 372. At its meeting of October–November 2015, the Committee made the following recommendations [see 376th Report, para. 568]:
   • (a) The Committee again urges the Government to take the necessary steps to ensure recognition of the right to trade union membership of workers who provide services for the State on the basis of civil contracts and requests it to immediately recognize the validity of the provision in the constitution of the Autonomous Union of Teachers of Guatemala (SAMGUA) which envisages union membership for all workers at the Ministry of Education, regardless of the type of contract through which the employment relationship has been formalized. The Committee also requests the complainant to report on the rectification of the errors of form called for by the labour administration and requests the Government to keep it informed without delay on the finalization of the procedure for the registration of SAMGUA.
   • (b) The Committee urges the Government to proceed immediately with the registration of CETRAMACH. Furthermore, the Committee requests the Government to take the necessary steps to ensure that issues involving complex legal appraisals in certain cases, such as determining whether or not the union’s founders occupy positions of trust, do not delay the registration process, since these could be dealt with after registration in the event of any objections. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee urges the Government to take all necessary measures to expedite considerably its internal registration procedures and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered. The Committee also invites the CCS to resubmit its application for registration and urges the Government to process it without delay. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee urges the Government to take the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions. The Committee further requests the Government to proceed without delay with the registration of the Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG), and to keep it informed in this respect.
   • (e) The Committee requests the Government to provide information on the types of modifications required to the statutes of the CICO and to ensure in the meantime that the latter is able to represent the workers envisaged in its constitution.
   • (f) The Committee requests the Government to send its observations without delay concerning the refusal to register the Authentic National Union of Workers at the Ministry of Public Health and Social Assistance and to ensure in the meantime that the latter is able to represent workers at the aforementioned ministry even if they are employed in different workplaces.
   • (g) In relation to SITRAGFIT, the Committee requests the complainant to send its observations in relation to the Government’s indications that several workers had complained that their affiliation was obtained improperly and that the union did not have members in three of the six companies covered by its statutes. Furthermore, the Committee expects that the pending judicial rulings relating to the dismissal of the founding members of SITRAGFIT will be handed down in the very near future, and that all existing and pending reinstatement orders will be complied with immediately. The Committee requests the Government to keep it informed in this respect.
   • (h) The Committee requests the Government to proceed with the registration of the Union of Workers and Employees at the Ministry of Education and Private Schools.
   • (i) The Committee urges the Government to proceed immediately with the registration of the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa, while retaining the possibility that any complaints regarding dual membership at the same workplace may be examined subsequently. The Committee requests the Government to keep it informed in this respect.
   • (j) With regard to the Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos, the Union of Workers of the Municipality of Palín in the Department of Escuintla and the Union of Workers at the Education Directorate of the Department of Alta Verapaz, on the one hand, and the Union of Workers of the Municipality of Pachulum, on the other, the Committee requests the complainant organization to send any observations it may wish to make regarding the Government’s statements concerning the reasons for refusing to register the aforementioned unions.
   • (k) With regard to the shelving of registration applications from 13 trade unions because more than six months had elapsed since the last notification from the labour administration, the Committee requests the Government to provide information without delay on the reason for non-registration of the aforementioned unions and also on the content and dates of the notifications sent to them by the labour administration.
   • (l) With regard to the applications for registration from five trade union organizations in relation to which legal proceedings are still in progress, the Committee requests the Government to provide information without delay on the reasons for the aforementioned legal proceedings and on the outcome thereof.
   • (m) With regard to the failure to register the “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority and the Union of Workers of the Municipality of San José El Rodeo (Department of San Marcos), the Committee requests the Government to review its decisions in the light of the principles underlined by the Committee relating to workers occupying positions of trust and to keep it informed in this respect.
   • (n) With regard to the list of 16 trade unions whose applications for registration submitted in 2010 were, according to the complainant, refused without justification, the Committee requests the Government to provide information without delay on the registration of the Union of the Education Ministry of the Department of Alta Verapaz, the Union of the Ixcan Quiché Health Sector and the Guatemalan Union of Labour Supporters and Defenders of Human Rights or, if applicable, to indicate the reasons that prevented registration. The Committee also urges the Government to provide, in the context of Case No. 2840, information without delay on the registration of the other 13 trade union organizations.
   • (o) The Committee expresses its concern at the large number of cases in which applications for trade union registration have been unsuccessful, at the lengthy periods of time that often elapsed before any decision is issued by the labour administration, and at the frequency of cases in which the labour administration calls for substantive amendments to a union constitution, thereby affecting the autonomy that should be enjoyed by trade union organizations by virtue of the principles of freedom of association. The Committee again urges the Government to eliminate, in consultation with the country’s trade union federations and employers’ organizations, the various legal obstacles to the free establishment of trade union organizations referred to in the preceding paragraphs and to review the handling of registration applications, with a view to adopting an approach that enables the rapid resolution, in conjunction with the founders of trade union organizations, of issues of substance or form that arise and facilitating as far as possible the registration of trade union organizations. Recalling that technical assistance is available from the ILO, the Committee requests the Government to keep it informed without delay on the initiatives taken and the results achieved in this respect.
   • (p) With regard to the allegations concerning the Union of Workers at the Peace Secretariat of the Office of the President of the Republic (SITRASEPAZ), the Committee requests the Government to: (i) keep it informed of any court decisions relating to the validity of the termination of the contract of the union’s general secretary, Mr Luis Antonio Mérida Ochoa; (ii) provide additional information on the total number of dismissals that have occurred because of the closure of the peace archives and requests the complainant to provide information on any court proceedings that exist in relation to those dismissals; (iii) ensure within the Peace Secretariat that all workers enjoy the right to freedom of association, regardless of their contractual relationship and that all workers not engaged in the administration of the State enjoy the right to collective bargaining, and to keep it informed in this respect; (iv) disseminate to public institutions the abovementioned principles; and (v) provide further details of the charges brought against Mr Luis Antonio Mérida Ochoa and to keep it informed of the outcome of the criminal proceedings instituted against him.
   • (q) The Committee requests the Government to provide its observations without delay concerning the alleged anti-union dismissals of members of the Union of Workers of the Guatemalan Heart Disease Association (SIDETRALICO) and of the Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH). The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which are implemented and respect the principles of freedom of association and are being complied with. The Committee requests the Government to keep it informed without delay in this regard.
   • (r) The Committee requests the Government to provide its observations without delay concerning the allegations of anti-union discrimination against the Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and the Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG) and to ensure the free exercise of the right to collective bargaining within the Ministry of Education. The Committee expects that the various court actions brought in relation to the events described will result in prompt decisions which respect the principles of freedom of association and are being complied with.
   • (s) The Committee urges the Government to ensure, should the existence of the court orders referred to in the conclusions be substantiated, that the administration concerned immediately reinstates the dismissed workers in their posts, and to keep it informed in this respect.

B. New allegations

1. 373. In its communication of 18 December 2015, the complainant alleges that: (i) after the Autonomous Union of Teachers of Guatemala (SAMGUA) obtained legal personality on 1 October 2015, three years after submitting its application, the Ministry of Education filed an appeal to revoke the Ministry of Labour’s decision to grant SAMGUA legal personality so as to prevent it from being registered; (ii) the Ministry of Education made its anti-union policy against SAMGUA clear by declaring on 18 November 2015, before the Congress of the Republic of Guatemala, that a majority union already existed and that, instead of forming another union, the members of SAMGUA should join the existing union; and (iii) the Government’s anti-union policy was reflected in concrete anti-union acts, such as the dismissal of Mr Carlos Enrique Gómez from his teaching position, as well as the acts of anti-union discrimination in the workplace against union members Ms Ericka Morataya, Ms Ana María Villafuerte Barrera and Mr Milfred Zamora, who suffered wage cuts and were also charged and handed penalties without due process in the administrative investigation.
2. 374. In its communication of 3 January 2017, the complainant alleges that, despite its clear requests, the Government has not complied with the Committee’s recommendation urging it to proceed without delay with the registration of the Federation of Workers of the Export Processing Industry of Guatemala (CENTRIMAG). The complainant also alleges that, as of the drafting of its communication, the Government had not complied with the Committee’s recommendation urging it to take the necessary steps to revise section 215(c) of the Labour Code so that it was possible to establish industrial trade unions.
3. 375. The complainant alleges that, contrary to the Committee’s recommendations, the Government has not proceeded with the registration of the Western Indigenous and Campesino Federation (CICO), ensured that it would be able represent the workers envisaged in its constitution, or provided the Committee with information on the types of modifications to the statutes that it had requested from CICO.
4. 376. The complainant alleges that the Government has continued to refuse to register the “Principles and Values” Workers’ Union at the Tax Administration Supervisory Authority (SITRAPVSAT), despite the Committee’s recommendation that it review the issue of registering the union, taking into consideration that an excessively broad interpretation of the concept of “worker of confidence” [worker occupying a position of trust] may seriously limit trade union rights.
5. 377. The complainant alleges that, despite the Committee’s recommendation urging the Government to proceed immediately with the registration of the Teachers’ Federation of Chiquimula (CETRAMACH), it was forced to turn to the courts, which ruled in its favour. However, the complainant alleges that the Government has yet to comply with the Committee’s recommendations.
6. 378. The complainant alleges that, in accordance with the Committee’s recommendations, the Southern Campesino Federation (CCS) resubmitted its application for registration, amending its constitution to meet the arbitrary and discretionary requirements of the Government, and that, although the CCS was eventually registered, its constitution was drawn up by the labour administration, in violation of Convention No. 87.
7. 379. In a communication dated 30 January 2017, the complainant alleges that, generally speaking, the State of Guatemala has continued and intensified the obstruction of the registration of trade union organizations that are not under its control, especially through the establishment of prerequisites and/or recommendations during the application process for registration, ordering the amendment of trade unions’ constitutions, with both the requirements and the recommendations demanding changes to the applications for registration being clearly illegal. The complainant also alleges that whenever it has chosen to challenge these administrative decisions (prerequisites and/or recommendations) of the Ministry of Labour and Social Welfare by filing an administrative appeal, the appeal has been denied by the Ministry of Labour on the grounds that the contested decision is merely an order that cannot be challenged. This ensures that the decision of the Ministry of Labour to impose arbitrary requirements is upheld at the administrative level, which has been backed by several decisions of the Constitutional Court, which has ruled that decisions ordering compliance with requirements and/or recommendations cannot not be challenged in administrative proceedings. Therefore, workers who wish to challenge an administrative decision that imposes illegal and arbitrary registration requirements must initiate ordinary proceedings, the resolution of which can take, on average, up to ten years. Moreover, the complainant alleges that the requirements (prerequisites and/or recommendations) of the Labour Directorate-General are of a de facto binding nature, as failure to comply with the prerequisites and/or recommendations will result in the shelving of the registration file. The practical and concrete effect of this shelving is that it violates the right to organize: given that such requirements cannot be challenged through administrative proceedings, the only option available to workers is judicial proceedings, which take an average of ten years, thus effectively creating “prior authorization” for the registration of trade unions in clear violation of Article 2 of Convention No. 87. The complainant specifically alleges that: (i) by means of an order dated 16 December 2016, the Worker Protection Department of the Labour Directorate-General ordered the Teachers’ Federation of Retalhuleu (CENTRAMAGRETAL) to amend article 12 of its constitution to remove the branch executive committees from its organizational structure, as well as article 36, which allows the union to subsequently create any committees it deems appropriate, to instead refer to specific committees that must be established a priori. In this regard, the complainant alleges that should the Federation fail to satisfy this prerequisite, the file will be shelved, and given that the decision ordering the shelving of the registration file is not subject to administrative appeal, the Federation is in a state of total defencelessness; (ii) by means of an order issued by the Worker Protection Department of the Labour Directorate-General, the Union of Workers of Chiquimula of the Municipality of Villa de Santiago Jocotán in the Department of Chiquimula (SINDIOBREROJOCOTÁN) was ordered to remove the right to organize of several categories of workers from its constitution, and to remove article 20, which establishes a gender quota for managerial positions; (iii) the Worker Protection Department of the Labour Directorate-General ordered the Union of Technical Workers Specializing in Secondary-Level Distance Learning in Chiquimula (SITRATCHIQUI) to remove articles from its constitution that, in the opinion of the official who signed the decision, were unnecessary; and (iv) the Ministry of Labour and Social Welfare shelved a file by means of orders dated 19 January 2016 and 21 September 2016 because the Union of Workers of the Municipality of San Lucas Tolimán (SITRAMSALT) refused to exclude several workers from the list of workers eligible to join the union.
8. 380. Furthermore, the complainant alleges that, in the public sector, the Government continues to deny the right to organize and bargain collectively to workers who are employed under budget items 021, 022, 029, 031 and 189 of the national budget. It states that the Ministry of Labour and Social Welfare continues to ask affiliated workers to indicate under which budget item they are employed in order to refuse the registration of the union. The complainant alleges that this has occurred with workers affiliated with the following trade union organizations: the Teachers’ Federation of Quiché (CENTRAMGQUICHÉ), CENTRAMAGRETAL, the Union of Education Workers in Secondary-Level Education Distance Learning in Alta Verapaz (SITRATEAVERAPAZ), the Teachers’ Federation of San Marcos (CENTRAMAR), SINDIOBREROJOCOTÁN and the Union of Education Workers in Secondary-Level Distance Learning in the Department of Petén (STETPETEN).
9. 381. In a communication dated 23 May 2017, the complainant alleges that, in order to more effectively obstruct the registration of trade unions, the Ministry of Labour and Social Welfare, through the Labour Directorate-General, established a procedure instructing labour inspectors to visit workplaces with lists of workers involved in the establishment of a union, so that their employers could indicate whether these workers were temporary or permanent and whether or not they were considered to be occupying positions of trust. The complainant alleges that although this practice is not provided for in the legislation, it was confirmed by the Constitutional Court in its judgment of 23 July 2015. The complainant also alleges that the Constitutional Court has set a serious precedent in terms of case law, through its decision of 5 December 2013, by recognizing the employer’s right, albeit not provided for in the legislation, to challenge the registration of the union to be formed by its employees.
10. 382. The complainant alleges that the measures described above were imposed on the following unions when applying for registration: (i) SITRATEAVERAPAZ, by means of Order No. 1439-2016 of 24 November 2016; (ii) STETPETEN, by means of Order No. 1438-2016 of 24 November 2016; and (iii) SITRATCHIQUI, by means of Order No. 449-2017 of 5 April 2017. The complainant further alleges that the refusal to recognize legal personality, approve constitutions and register is also not likely to be subject to amparo [protection of constitutional rights], since according to the judgment of the Constitutional Court dated 18 July 2012, inter alia, refusal for registration must first be challenged in ordinary proceedings before a labour and social welfare court, a procedure that can last many years.
11. 383. The complainant then states that, in the light of the state policy of rejecting applications for registration and the inability to challenge decisions of the Ministry of Labour and Social Security, it has adopted a new strategy that involves promoting amparo actions against the Labour Directorate-General for its failure to process registration files, so that administrative silence is deemed to be favourable. It states that several amparo actions were initiated on 31 May 2017 by workers involved in the establishment of a union.
12. 384. In a communication dated 30 January 2018, the complainant alleges that trade unions are obliged, inter alia, to send a certified roll of all their members, including their full names, personal ID numbers and occupation or trade, to the Labour Directorate-General once a year, and that failure to do so may lead to fines and even the dissolution of the trade union. It also alleges that the State of Guatemala has not only failed to bring its legislation into conformity with Convention No. 87 but has also obliged trade unions to fulfil this legal obligation (provided for in section 225(e) of the Labour Code) on an annual basis from the time of their conception. The complainant further alleges the above-mentioned data have been used to commit acts of anti-union discrimination against workers and, more specifically, have led to dismissals and various acts of anti-union violence. Moreover, the complainant alleges that during the months leading up to the drafting of the communication on 30 January 2018, the Labour Directorate-General began requiring trade unions, by means of “orders”, to add the membership application of each new union member to their certified rolls in order to have their union rolls registered. The complainant alleges that such orders violate the legislation in force, which does not require the submission of membership applications of union members, and that such applications contain sensitive information about each member, such as their phone number, email and mailing address and emergency contacts. The complainant states that the following unions have been required to provide this type of additional information: (i) the Union of Workers at the Departmental Directorates of the Ministry of Education of the State of Guatemala (SITRADEMEG), by means of Order No. 1147-2016; (ii) the Union of Education Workers in Secondary-Level Distance Learning in Retalhuleu (STRETREU), by means of Order No. 003-2017; (iii) the Multisectoral Union of Independent Market Vendors in Chimaltenango Zone 2 (SUVIMECH), by means of Order No. 261-2017; (iv) the Union of Workers at the National Forensic Science Institute of Guatemala (SINTRAINACIF), by means of Order No. 315-2017; (v) the Caring Mothers’ Workers’ Union in the President’s Wife’s Social Work Secretariat (SITRAMC), by means of Order No. 33-2018; (vi) the Union of Education Workers in Secondary-Level Distance Learning in Quiché (STETQUICH), by means of Order No. 29-2018; (vii) the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Jutiapa (S.T.E.B.I.N.T.J.), by means of Order No. 40-2018; and (viii) the Union of Workers in Secondary-Level Distance Learning in Santa Rosa (SINTRAT S.R.), by means of Order No. 41-2018. The complainant adds that, given that these “orders” cannot be challenged in administrative or judicial proceedings, the trade unions must fulfil any discretional requirements that are imposed on them, in accordance with several decisions issued by the Constitutional Court of Guatemala, such as its judgments dated 18 January 2018 and 13 January 2015. The complainant also alleges that should a trade union refuse to fulfil its obligation to send the membership application of every union member, the Labour Directorate-General will not update the union roll in the relevant registry or add the new members and will issue a new “order” for the shelving of the certified union roll, arguing that six months have passed since the trade union in question met its requirements. The complainant further alleges that the shelving of the registered union roll restricts the right of trade unions to freely elect their representatives: if a worker who is not registered on the latest roll is elected, his or her election will not be recognized.
13. 385. In a communication dated 31 January 2018, the complainant alleges that the amparo actions filed by workers against cases in which the Ministry of Labour and Social Welfare issued “orders” imposing arbitrary requirements were rejected by the Constitutional Court. The object of these actions was to obtain a decision from the Constitutional Court declaring that, given that the orders were not considered administrative decisions, administrative silence – in the absence of challengeable decisions in cases of registration – should be considered as favourable and thus lead to the requested registration of the trade union. However, the Constitutional Court, in a judgment dated 18 January 2018, ruled that the absence of a decision that could be challenged by workers could not be considered a lack of decision. As there was an “order” in that case that reiterated that the newly formed union was required to amend certain articles in its draft constitution and to indicate each member’s type of employment, the Court considered that there was no administrative silence. Moreover, the complainant alleges that the Constitutional Court handed down another judgment dated 25 January 2018, in which it endorsed the Government’s anti-union practices by ruling that the applicants’ (workers’) own inaction had led to the shelving of the registration file, as they had failed to comply with the requirements set forth in the order issued by the Labour Directorate-General, and that if the applicants considered that the shelving of the file was an infringement of their rights, they should have sought amparo by pointing out that this action was detrimental to them. However, the complainant alleges that the same Constitutional Court had already ruled in other cases that the “orders” were not challengeable decisions, making it impossible for the applicants to file an amparo action. The complainant alleges that the blatant contradiction in the decisions of the Constitutional Court (in one ruling (a judgment dated 13 January 2015), it states that orders are not binding and are not challengeable and, in another (a judgment dated 18 January 2018), it establishes that compliance with the content of such orders, while not challengeable, is a prerequisite for access to free unionization) seeks to prevent all workers or certain categories of workers from exercising freedom of association, and to justify the intervention of the employer in the establishment of a trade union organization. In this connection, the complainant alleges that according to the judgment handed down by the Constitutional Court on 5 December 2013, in the context of Case No. 2633-2013, the workers’ right to organize constitutes an act that affects the employer’s legitimate right to prevent the existence of trade union organizations in its workplace, and also legitimizes the employer’s supposed right to oppose the unionization of its workers by opposing the registration of the trade union in question.
14. 386. The complainant also alleges that the State of Guatemala still refuses to allow state workers hired under temporary contracts to freely unionize, even though the duties they perform are permanent in nature. In this context, the complainant refers to the situation of technical workers specializing in secondary-level distance learning.
15. 387. The complainant states in this regard that: (i) as a result of the actions filed with its support, the labour courts issued judgments in favour of the technical workers specializing in secondary-level distance learning, declaring the continuous and uninterrupted nature of their employment relationship, judgments that became final when they were confirmed by the Chambers of the Court of Appeal; (ii) the Attorney-General’s Office and the Ministry of Education challenged the constitutionality of each of these judgments before the Supreme Court of Justice of Guatemala; and (iii) in view of the countless judgments that have upheld the claims brought by the affected workers and thus declared that they had the right to job stability and to freedom of association, the Ministry of Labour and Social Welfare had no choice but to proceed with the registration of the various secondary-level distance learning unions that are members of the MSICG. Moreover, the complainant alleges that the Ministry of Labour and Social Welfare limited, in the decision ordering the registration of the various unions of technical workers specializing in secondary-level distance learning, the duration of the employment relationship of each worker, as it continued to consider them temporary workers, according to a summary investigation that the Ministry carried out in coordination with the employer, notwithstanding the judgments to the contrary.
16. 388. In its communication of 23 May 2017, the complainant alleges new violations of freedom of association and collective bargaining against the Union of Workers at the Peace Secretariat (SITRASEPAZ) and its members, namely: (i) in 2016, 22 workers affiliated with SITRASEPAZ were arbitrarily and illegally dismissed; (ii) the contracts of several workers affiliated with SITRASEPAZ, who worked in the National Reparations Programme, were not renewed for 2017 and while the immediate renewal of their contracts was requested, that request had yet to be granted as of the filing of the present complaint in May 2017; (iii) the authorities of the Peace Secretariat of the Office of the President of the Republic do not recognize the union, and refuse to engage in a dialogue with it, even though the Vice-President of the Republic was made aware of the situation on 16 December 2016 and asked to set up a round-table discussion, a request that had yet to be granted as of the filing of this complaint; (iv) the Deputy Minister of Labour informed the executive committee of the union that the round-table discussion could only continue if the union’s inter-institutional coordination secretary, Mr Luis Antonio Mérida Ochoa, stepped down as director of conciliation at the Peace Secretariat, as it was a position of trust that could not be held by a union official; (v) several workers were arbitrarily and illegally dismissed, in violation of articles 17 and 33 of the above-mentioned collective agreement and the judicial summons dated 14 and 16 July 2017, which prohibit reprisals and the termination of the contracts of the 22 workers who were illegally dismissed; and (vi) the refusal by the State of Guatemala to negotiate the draft collective agreement on working conditions directly, alleging a presidential prohibition in this regard, set out in Memorandum No. 02-2017.
17. 389. The complainant alleges, in relation to the Government’s claims that several workers had complained that their affiliation to the Union of Workers of the Workers’ Financial Group (SITRAGFIT) was obtained improperly, that as of the drafting of the communication, no members had left the union, which shows that the Government’s allegations are unfounded. As to the proceedings for the reinstatement of the workers dismissed for their participation in the establishment of the trade union, the complainant alleges that, following lengthy legal proceedings, final judgments calling for the reinstatement of the workers in question were eventually obtained. However, the complainant points out that upon the reinstatement of the workers, the employer dismissed them again as soon as the implementing minister had left. Furthermore, the complainant informs the Committee that the Government has continued to refuse to register the Guatemalan Union of Labour Supporters and Defenders of Human Rights.
18. 390. In its communication of 25 October 2018, the complainant alleges the following violations of freedom of association against the Union of Workers at the National Registry Office (SITRARENAP) and its members: (i) in November 2017, the management of the National Registry Office (RENAP) terminated the contracts of six members of (newly formed) SITRARENAP during an administrative investigation for the alleged misuse of a vehicle owned by RENAP, an act that was denied by the members concerned; (ii) on 23 November 2017, the six persons reported the incidents to the Public Prosecutor’s Office of Guatemala; (iii) beginning in late December 2017, the affected workers filed applications for reinstatement with various labour and social welfare courts, which were granted; (iv) as at 21 December 2017, there had been an increase in the termination of contracts, with 55 terminations already recorded; (v) following the decision of the Labour Directorate-General of 12 March 2018, granting SITRARENAP legal personality, the executive director of RENAP resumed reprisals against the workers who were members of the union by ordering the transfer of Mr Melvin Estuardo Zacarías Velásquez, SITRARENAP’s external and internal relations secretary, to another department of RENAP; although the court hearing the case ordered the reinstatement of Mr Zacarías Velásquez, as of the filing of the complaint, the board of directors of RENAP had yet to comply with the reinstatement order; and (vi) SITRARENAP fears that RENAP will terminate the contracts of all the workers who belong to the union, given that all RENAP workers have been employed under budget item 029 (civil employment) since 2007, despite the fact that the Constitutional Court has repeatedly ruled that due to the nature of the institution, all contracts should be fixed-term, a situation that the board of directors of RENAP has never regularized.

C. The Government’s reply

1. 391. In a number of communications sent between November 2015 and 5 September 2024, the Government provides its observations on the Committee’s recommendations and the complainant’s additional allegations.
2. 392. With regard to the registration of SAMGUA (recommendation (a) of the Committee), in a communication dated 12 May 2023, the Government states that this organization was registered in the Public Trade Union Register on 21 September 2015.
3. 393. With regard to the registration of CETRAMACH (recommendation (b) of the Committee), in a communication dated 22 May 2019, the Government states that this organization was registered in the Public Trade Union Register on 21 September 2015.
4. 394. As regards the registration of the CCS (recommendation (c) of the Committee), in a communication dated 12 January 2023, the Government states that this organization was registered in the Public Trade Union Register on 8 January 2016.
5. 395. In a communication dated 22 May 2019 (recommendation (d) of the Committee), the Government states that on 2 June 2014, the file of CENTRIMAG was shelved, in accordance with section 5 of the Administrative Litigation Act, and that no new application has been filed. In the same communication, the Government reports that: (i) on 18 January 2016, it proceeded with the registration of the Authentic National Union of Workers at the Ministry of Public Health and Social Assistance (SINATRAMS) (recommendation (f)); (ii) S.T.E.B.I.N.T.J. was registered on 15 December 2015 (recommendation (i)); and (iii) the registration application of SITRAPVSAT (recommendation (m)) was shelved due to irremediable flaws, and no new application to establish the union has been filed
6. 396. As to the Committee’s recommendation that it provide information on the types of modifications required to the statutes of CICO and that it ensure in the meantime that CICO is able to represent the workers envisaged in its constitution (recommendation (e)), in a communication dated 30 August 2019, the Government states that: (i) CICO was asked to remove the term “workers” and to indicate only the occupation or trade of its members, as well as their place of work; (ii) CICO was asked to modify the nature of the union, indicating whether it was of a “trade union” or “campesino” nature; (iii) CICO was asked to change “federation executive committee” to “executive committee”; (iv) the content of article 27 of the draft constitution was not approved, as section 225(a) of the Labour Code stipulates that only four books per union shall be approved, but the union members wish to have the book for each branch approved; (v) the content of article 30 was not approved on the grounds that, under section 223(d) of the Labour Code, only the members of the executive committee may be protected against dismissal, while the union members claim that the “branch executive committee” enjoys the same protection; and (vi) it guaranteed CICO that it would be able to represent workers envisaged in its constitution through its provisional executive committee members, who were always able to hold meetings to elect the provisional committee and advisory council, to hold meetings for these bodies, and to take steps to obtain the registration of the union’s legal personality and constitution. However, even though the newly formed union was notified of the order permitting these activities, the administrative file does not contain any record of this, so it was shelved because more than six months had elapsed without any activity from the interested parties.
7. 397. With regard to the Committee’s recommendation requesting the Government to proceed with the registration of the Union of Workers and Employees at the Ministry of Education and Private Schools (recommendation (h)), in a communication dated 2 August 2018 (attached), the Government states that under the current legislation, the grounds for the refusal of the union’s registration are provided for in section 215 of the Labour Code, which defines the various types of unions (that is, trade unions, company unions and sectoral unions), and section 3 of the Act on Unionization and Regulation of Strike Action by State Employees, which establishes the forms of trade union organizations permitted and states that unions may be established by state agencies, ministries, autonomous or decentralized entities or by branch or trade, and that the form of organization sought by the union in question is incompatible with these legal provisions. In addition, in a more recent communication dated 22 May 2019, the Government states that, as reported by the Labour Directorate-General of the Ministry of Labour and Social Welfare, the file of the union in question was shelved on 3 March 2014 due to irremediable flaws, and that to date, no new application for registration has been filed.
8. 398. The Government also provides information about the applications for registration from five trade union organizations in relation to which legal proceedings are still in progress (recommendation (l)). In communications dated January 2020 and 12 May 2023, the Government begins by referring to the situation of the Union of Workers at the Port of Santo Tomás de Castilla (SINTRAPSATCA), stating that: the amparo action filed by the port company Santo Tomás de Castilla against the Ministry of Labour and Social Welfare has concluded and been shelved as a result of a judgment of the Constitutional Court dated 11 November 2014, which dismissed the appeal filed by the company. The Government also indicates that the registration of the Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Sport (SINTRADIGEDERE) in February 2012 led to administrative appeals and then an amparo action by the Ministry of Culture and Sports on the grounds that the founding members of the union were fixed-term employees, some of whom were employed on the basis of civil contracts (budget item 029). The amparo action was upheld by both the Supreme Court and the Constitutional Court and, in accordance with those rulings, the Ministry of Labour and Social Welfare eventually cancelled the registration of SINTRADIGEDERE on 21 May 2015.
9. 399. With regard to the Union of Workers at Ternium Internacional Guatemala SA (SITRATERNIUM), in a communication dated 16 January 2020, the Government states that: (i) the Labour Directorate-General ordered its registration in a decision dated 21 June 2012; (ii) the company filed an appeal for revocation, which was dismissed by the Ministry of Labour and Social Welfare on 21 March 2014; (iii) on 20 January 2015, the Supreme Court of Justice denied the amparo action filed by the company on the grounds that the contested decision was not final; and (iv) on 19 September 2014, the Constitutional Court dismissed the appeal filed by the company. Moreover, in a communication dated 16 January 2020, the Government provides information regarding the “Pro Dignity” Workers’ Union at the Tax Administration Supervisory Authority (SIPROSAT), stating that: (i) on 29 November 2012, the Labour Directorate-General refused to register the union on the grounds that it did not meet the required number of members because some of them were considered to occupy positions of trust, and the appeal to revoke the decision was also rejected; and (ii) SIPROSAT filed an amparo action before the Supreme Court of Justice, which was denied on 30 September 2013, a decision that was appealed before the Constitutional Court, which also decided to deny the appeal in a judgment dated 25 September 2014.
10. 400. With regard to the four trade union organizations mentioned in recommendation (j) of the Committee, in several communications from 2019, the Government states that: (i) the Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos con Igualdad (SITRAUM) was registered in the Public Trade Union Register on 6 November 2018; (ii) the Union of Workers of the Municipality of Palín in the Department of Escuintla (SINEMUNIPAL) was registered in the Public Trade Union Register on 13 April 2012; (iii) the registration file of the Union of Workers at the Departmental Education Directorate of Alta Verapaz (SINDIDEDUCAV) was shelved due to the late submission of the application for its legal personality, approval of its constitution and registration, and no new application has been submitted since; and (iv) the registration file of the Union of Workers of the Municipality of Pachalum was shelved due to irremediable flaws, as four of its founding members were municipal police officers, which are not only considered to be positions of trust, but are also exempt from the right to organize under the Act on Unionization and Regulation of Strike Action by State Employees. The union has not filed a new application.
11. 401. With regard to the alleged shelving of the registration applications from 13 trade unions (recommendation (k)), in a communication dated 3 September 2019, the Government states that: (i) the Union of Workers at SEAK HWA SA and the Union of Workers of the Municipality of Usumatlán were registered on 11 October 2012 and 26 March 2015, respectively; (ii) the file of the Union of Collection Agents at Cable Star SA was shelved due to its withdrawal by the union members; (iii) it was decided not to proceed with the registration of the General Union of Municipal Employees of Coatepeque, as its members worked in different municipalities; (iv) with regard to the Union of Workers of the Municipality of Santa Lucía Milpas Altas, a preliminary request was issued on 12 July 2011 in which the union members were asked to submit the charter and constitution signed by the secretary and the other members; the file was later shelved because more than six months had elapsed without compliance with the request; (v) in the four cases of the Union of Workers at Avandia SA, the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Izabal, the Union of Workers of the Municipality of Santa Cruz El Chol in the Department of Baja Verapaz and the Union of Workers of the Municipality of San Miguel Tucurú in the Department of Alta Verapaz, preliminary requests were issued; the files were later shelved, by means of decisions issued throughout 2012, because six months had elapsed without any activity; (vi) with regard to the Teachers’ Union of Jalapa, a preliminary request to amend the charter and to attach the constitution for review was issued; the file was later shelved because six months had elapsed without any activity; and (vii) with regard to the Union of “Teachers for Change”, the Union of Workers of the Municipality of Villa de Tejutla in the Department of San Marcos, the Union of Workers of the Municipality and Electricity Company of Guastatoya, El Progreso, preliminary requests to amend certain articles of the constitutions and/or certain aspects of the charters were issued; the files were later shelved, by means of decisions issued throughout 2012, because six months had elapsed without any activity.
12. 402. With regard to the Committee’s recommendation requesting the Government to review its decisions in the light of the principles underlined relating to the lack of registration of SITRAPVSAT and the Union of Workers of the Municipality of San José del Rodeo (Department of San Marcos) (SITRAMUNIRODEO) (recommendation (m) of the Committee), in a communication dated 22 May 2019, the Government states that: (i) no appeal has been filed against the order to shelve the registration of SITRAPVSAT and therefore the order is final; and (ii) after the registration of SITRAMUNIRODEO was refused, the union filed an appeal for revocation, which was dismissed on 18 October 2012.
13. 403. With regard to recommendation (n) of the Committee requesting the Government to provide information without delay on the registration of the Union of the Education Ministry of the Department of Alta Verapaz, the Union of the Ixcan Quiché Health Sector and the Guatemalan Union of Labour Supporters and Defenders of Human Rights, in a communication dated 30 August 2019, the Government states that: (i) the file for the registration of the Union of the Education Ministry of the Department of Alta Verapaz was shelved, in accordance with section 5 of the Administrative Litigation Act, as two years had elapsed without any response to the preliminary request to amend certain articles of the constitution; and (ii) the Union of the Ixcan Quiché Health Sector was registered on 2 November 2010, as recorded in Trade Union Registration Book 22. Moreover, with regard to the registration of the Guatemalan Union of Labour Supporters and Defenders of Human Rights, in a communication dated 7 October 2021, the Government indicates that the Department of Worker Protection issued a request, dated 8 April 2022, to legally amend certain articles of the draft constitution. The newly formed trade union filed an appeal to revoke the decision issuing these requests, which was partially upheld. The Labour Directorate-General then issued formal requests, dated 15 November 2013, which were notified to the members of the newly formed trade union on 20 November 2013. However, due to the lack of response to these requests and the fact that the interested parties had ceased to take any action regarding the file, the file was shelved.
14. 404. With regard to the concern expressed by the Committee at the large number of cases in which applications for trade union registration have been unsuccessful and at the frequency of cases in which the labour administration calls for substantive amendments to a union constitution, thereby affecting the autonomy of trade union organizations (recommendation (o) of the Committee), in a communication dated 3 May 2019, the Government states that: (i) according to the statistical records of the Labour Directorate-General of the Ministry of Labour and Social Welfare, a high percentage of the applications submitted for the registration of trade unions are successful, which shows that there are no obstacles to the free establishment of trade unions; (ii) in order to make the formal requirements transparent and to shorten delays, the following actions are currently being taken, namely: (a) face-to-face meetings with the various trade union organizations; (b) direct communication by phone; (c) free advice and guidance to those wishing to form trade union organizations; (d) regular correspondence by email to answer any questions; and (e) publication of the “Trade Union Booklet”, which contains clear and simple information on how to register trade unions; (iii) it has presented the results of the key indicators of the road map (including the unimpeded registration of trade union organizations in the trade union register of the Ministry of Labour and Social Welfare), as well as the tripartite dialogue that was held in the Subcommittee on the Implementation of the Road Map in 2018 to discuss the actions required for the implementation of the road map; (iv) on 3 December 2018, a tripartite meeting was held in the Subcommittee on the Implementation of the Road Map, in which the Labour Directorate-General and the Deputy Minister of Labour presented the “Trade Union Booklet” containing essential information on freedom of association rights, as well as the legal procedures for registering trade unions; and (v) the Government invited the workers’ sector to a working meeting in May 2019 to discuss the process for establishing trade unions with a view to strengthening the process through dialogue. In addition, in a more recent communication dated 11 September 2023, the Government reiterates that, in accordance with the national legislation, particularly the Labour Code, and the Committee’s recommendations, the registration of a trade union organization must fulfil a number of requirements established by law.
15. 405. As to the Committee’s recommendation urging the Government to take the necessary measures to expedite considerably its internal registration procedures and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered (recommendation (c)), in a communication received on 12 September 2023, the Government states that it has taken measures to expedite its internal registration procedures and, to that end, indicates that the Ministry of Labour and Social Welfare has issued Ministerial Agreement No. 214-2023, dated 12 May 2023, which regulates the procedure for issuing union identification cards to members of executive committees and advisory councils of trade unions, which will allow them to be quickly and simply identified when performing their duties through the use of a quick response (QR) code that validates the information provided on the union identification card, which is easy to carry.
16. 406. With regard to the Committee’s recommendation that the Government take the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions (recommendation (d)), in a communication dated 22 May 2019, the Government refers to tripartite discussions held in 2018 to implement the legislative aspects of the road map on freedom of association adopted by the Government in 2013 as follow-up to the complaint against Guatemala filed in 2012 under article 26 of the ILO Constitution. The Government states that, with a view to bringing the national legislation into line with Conventions Nos 87 and 98, the tripartite actors discussed the revision of section 215(c) of the Labour Code and, in particular, the thresholds applicable to the establishment of sectoral trade union organizations. In a communication dated 11 September 2023, the Government states that the Subcommittee on Legislation and Labour Policy of the National Tripartite Committee on Labour Relations and Freedom of Association has included follow-up on the issue of industrial unions in its 2022–23 work plan, for which it will require technical assistance from the ILO.
17. 407. The Government states that, in the light of the allegations of the MSICG and the Committee’s recommendations in paragraph 568 of its 376th Report, it signed, through the Ministry of Labour and Social Welfare, a letter of intent with the Ministry of Labour and Social Welfare of the Republic of Argentina on 8 June 2022, requesting support and assistance from the Argentine Ministry so that Guatemala can have a strengthened and more robust public trade union register in the Labour Directorate-General, similar to the one in Argentina, so that all acts initiated by trade union associations can be processed in accordance with the national legislation and the recommendations of the various ILO supervisory bodies.
18. 408. In a communication dated 5 January 2024, the Government reports that the Guide to Freedom of Association, which replaces the booklet on freedom of association prepared in 2018, was adopted on 12 December 2023 by means of Ministerial Agreement No. 532-2023. The guide covers the following four points: (i) criteria, procedures and forms for trade union organizations; (ii) forms for trade union organization procedures; (iii) model trade union constitutions; and (iv) forms for downloading. The Government states that the purpose of the guide is to facilitate the registration of trade union organizations, strengthen legal certainty and reduce the discretion of the labour authorities.
19. 409. With regard to the pending judicial rulings on the dismissals of the founding members of SITRAGFIT and compliance with the reinstatement orders already issued (recommendation (g) of the Committee), in a communication dated 24 February 2016, the Government states that: (i) Ms Emily Zenaida Aguilar Álvarez, an employee of the company Plaxo SA, was reinstated on 7 August 2015 and given her unpaid wages as well as other employment benefits to which she was entitled; and (ii) in the case of Mr José Eduardo Estrada Chapetón, Mr Roberto Carlos Hidalgo Paul, Mr Elvis Gustavo Hernández Recinos and Mr Santos Augusto Sija Álvarez, employees of the Workers’ Bank, due to a substantial error in the proceedings, an order to amend the procedure was issued; the applicants must therefore meet the requirements set forth before their reinstatements can be ordered. Moreover, in a more recent communication dated 31 January 2020, the Government states that: (i) Mr Eduardo Estrada Chapetón filed a withdrawal, which was approved in an order dated 25 November 2015; (ii) Mr Roberto Carlos Hidalgo Paul filed a complete withdrawal of the proceedings, which was approved in an order dated 4 February 2016; (iii) Mr Elvis Gustavo Hernández Recinos was reinstated by means of a reinstatement act dated 20 May 2014; (iv) the reinstatement of Mr Santos Augusto Sija Álvarez was ordered in a decision issued by the Fourth Chamber of the Labour and Social Welfare Court of Appeal on 14 December 2018; (v) with respect to the application for reinstatement filed by Ms Ingrid Janeth López Teni against the Workers’ Bank, on 8 October 2018, the respondent was ordered to immediately reinstate the applicant, and the implementing minister drafted a report dated 18 October 2018 recording her reinstatement. The applicant has yet to respond to the content of the minister’s report; (vi) with respect to the application for reinstatement filed by Ms Odeth Julia Elena Roldán Ramírez, the Government states that, in an order dated 2 September 2013, the Court hearing the case ordered the applicant to provide documentary evidence that the newly formed trade union groups together with employees of the Workers’ Bank, given the discrepancy between the name of the trade union and the name of the respondent; the applicant appealed this order, but her appeal was rejected by the Second Chamber of the Labour and Social Welfare Court of Appeal in an order dated 10 March 2014. Given that the applicant failed to comply with the order dated 2 September 2013, the file is currently on hold in the Court’s internal archive; and (vii) with respect to the application for reinstatement filed by Ms Deysi Elisabeth López Mas de Góngora against the Workers’ Bank, after the Jurisdictional Chamber upheld the reinstatement judgment issued by the Second Labour and Social Welfare Court, it was established that the applicant had been dismissed once again, and her reinstatement was ordered a second time. In a more recent communication dated 15 February 2021, the Government reports that, following several requests, the applicant has finally issued a written statement declaring that she has been reinstated and is still awaiting the payment of unpaid wages and benefits.
20. 410. With regard to the alleged anti-union dismissals of members of the Union of Workers of the Guatemalan Heart Disease Association (SIDETRALICO), and compliance with the reinstatement orders issued at first instance (recommendation (q) of the Committee), in a communication dated 4 November 2015, the Government states that: (i) contrary to the allegations of the workers of SIDETRALICO, the Secretariat of the Ministry of Labour and Social Welfare determined that a union establishment notice dated 8 August 2012 was never filed; (ii) the registration file contains copies of notices filed by Mr Francisco Arroyave Morales (employer), dated 7 and 8 August 2012, with the General Labour Inspectorate informing it of the dismissal of 20 workers from the Guatemalan Heart Disease Association, 12 of whom were members of (the newly formed) SIDETRALICO; (iii) on 5 December 2012, the workers of SIDETRALICO complied with the requirements issued in Order No. 334-2012; however, an irremediable flaw was noted in the file, as 12 of the 27 members had been dismissed due to restructuring, lacking the right to protection against dismissal at the time, and thus they failed to meet the minimum number of members required for the establishment of a trade union provided for in section 216 of the Labour Code; (iv) consequently, the Labour Directorate-General, based on the legislation in force, decided to reject the application for registration from SIDETRALICO; (v) on 23 January 2013, the members of SIDETRALICO informed the Labour Directorate-General that they were filing an amparo action against it due to the state of permanent defencelessness caused by the lack of permanent protection against dismissal; (vi) on 12 August 2013, the Labour and Social Welfare Court of Appeal declared the amparo action to be inadmissible and subsequently decided not to allow the appeal filed by the applicants; and (vii) consequently, the Labour Directorate-General states that it has not violated the right to freedom of association of the workers of SIDETRALICO, that the unit of the Ministry of Labour and Social Welfare acted in accordance with the law in refusing to register SIDETRALICO, and requests the Committee not to pursue the examination of this allegation.
21. 411. With regard to any court decisions relating to the validity of the termination of the contract of the general secretary of the trade union organization SITRASEPAZ, Mr Luis Antonio Mérida Ochoa (recommendation (p) of the Committee), in a communication dated 13 April 2016, the Government states that the action to obtain his reinstatement was denied by the Chamber of Amparo and Preliminary Proceedings of the Supreme Court of Justice, a decision that was appealed by Mr Mérida Ochoa before the Constitutional Court, and that as of drafting of the communication, the appeal had yet to be resolved. As to the additional information on the total number of dismissals that occurred because of the closure of the Peace Secretariat, the Government states that the total number of workers whose contracts were terminated was 15. Of these 15 workers, 10 have initiated legal action with a view to their reinstatement. The Second Chamber of the Labour and Social Welfare Court of Appeal granted the reinstatement of the workers, but only for the remainder of their contracts. However, the applicants appealed to the Supreme Court of Justice to modify the judgment regarding the duration of their reinstatement, but this action was declared to be inadmissible in a judgment dated 30 July 2014. This judgment was also appealed before the Constitutional Court, an appeal that was rejected in a judgment dated 26 February 2015. The Government states that the above-mentioned judgments show that the termination of the contracts of the staff from the archives directorate at the Peace Secretariat was lawful, as there was no other area in the Peace Secretariat, following the closure of the archives directorate, to which these workers could be reassigned. Regarding the offences of which Mr Luis Antonio Mérida Ochoa has been accused, the Government states that the Peace Secretariat authorities filed a criminal complaint against Mr Mérida Ochoa for possibly committing the offences of fraud, a special case of fraud, abuse of authority, fraud and extortion, although the investigation into this complaint is being conducted by the Prosecutor’s Office against Corruption in the Public Prosecutor’s Office and, as of the drafting of this communication, was still under way. The Government also states that the purpose of this complaint was not to criminalize Mr Mérida Ochoa, but to safeguard the interests of the State, and that the criminal complaint against the official was the result of his irresponsible actions, which have been fully proven by the sanctions imposed on him by the Office of the Comptroller General. In a more recent communication dated 31 January 2020, the Government states that, with regard to the criminal case against Mr Luis Antonio Mérida Ochoa, according to the records of the Public Prosecutor’s Office, the case has been closed because it was dismissed by the prosecution. In another recent communication dated 12 May 2023, the Government states that: (i) regarding the workers, Ms Adela Victorina Arreaga De León de Barrios or Adela Victorina De León, Ms María Tulia López Pérez, Mr Sergio Arnoldo García Mendoza, Ms Clemencia Verónica González Berdúo, Ms Mary Guadalupe Ismalej Chen and Ms Juana Francisca Aj González, who had been dismissed by the National Reparations Programme attached to the Peace Secretariat, they were all reinstated between 28 and 29 August 2016; (ii) complaint MP001-2017-40394 before the Prosecutor’s Office for Crimes against Judicial Officials and Trade Unionists, filed by Mr Luis Antonio Mérida Ochoa, Mr Luis Adolfo Javier Gaytán and Mr César Augusto Arrecís Canelo of SITRASEPAZ, against the Peace Secretariat of the Office of the President of the Republic, in their capacity as former chair and chair, respectively, of the National Reparations Commission, for possible commission of the crimes of discrimination, abuse of authority, breach of duty and non-compliance, was dismissed in a decision dated 25 June 2018, and (iii) by means of Governmental Agreement No. 46-2022 dated 15 February 2022, the Government agreed to close the Peace Secretariat of the Office of the President of the Republic and appointed a liquidation board with a view to fulfilling, inter alia, the labour obligations of the workers.
22. 412. As to the alleged anti-union dismissals of members of SITRAPDH (recommendation (q)), in a communication dated 5 April 2021, the Government states that: (i) the workers Ms Eva Luz Urízar Solís, Mr Julio Cesar Fernández Villagrán, Ms Karla Joanna García Santiago, Ms Ana Lucía del Carmen Carrascosa Barrera, Mr Julio Mizraim Tzul Hernández, Ms Sandra Bernarda Baquías Rojas de Yax and Ms Sonia Gabriela Quiroa Morales were dismissed on 29 May 2013 and instituted legal proceedings for reinstatement on 3 June 2013 before the Labour and Social and Economic Welfare Court of First Instance of the Department of Quetzaltenango; (ii) as the Court failed to issue an order to reinstate the applications, the workers filed an amparo action against the Judge of First Instance; (iii) on 29 December 2014, a judgment was handed down in favour of the applicants and thus the Court of First Instance had to issue the decision legally corresponding to the considerations of the judgment on merits; and (iv) the Judge of First Instance, in an order dated 27 February 2015, ordered the reinstatement of the applicants, and on 22 June 2016, the Office of the Human Rights Ombudsman filed a petition containing the applicants’ reinstatement agreements.
23. 413. With regard to the alleged commission of acts of anti-union discrimination against members of the Union of Administrative and Education Service Workers of Guatemala (STAYSEG) and SITRADEMEG and the need to ensure the free exercise of the right to collective bargaining within the Ministry of Education (recommendation (r)), in communications dated 21 December 2016 and 30 August 2019, the Government states that: (i) on 1 July 2014, the Labour, Social Security and Family Court of First Instance of Chiquimula ordered the reinstatement of Mr Byron Rolando Fuentes León, a SITRADEMEG official, as well as the payment of unpaid wages and other unpaid benefits, a judgment that was subsequently upheld by the Second Chamber of the Labour and Social Welfare Court of Appeal of Guatemala; (ii) Ms María Magdalena Aju Upun, a member of the advisory council of STAYSEG, was reinstated and paid her unpaid wages and employment benefits; (iii) with regard to ordinary labour proceedings brought by the Ministry of Education with the aim of obtaining judicial authorization to dismiss Mr Jorge Byron Valencia Martínez, a judgment was handed down on 24 February 2014 dismissing the petition filed by the State, a decision that was upheld at second instance by the court that subsequently that heard the amparo action filed by the Government; and (iv) with regard to the criminal complaint filed by Mr Jorge Byron Valencia Martínez concerning two incidents in which he was threatened, after conducting a criminal investigation, the Public Prosecutor’s Office deemed it appropriate to dismiss the criminal complaint in question until new evidence made it possible to resume the investigation.
24. 414. As to the Committee’s recommendation urging the Government to ensure, should the existence of the court orders referred to in the conclusions be substantiated, that the administration concerned immediately reinstates the dismissed workers in their posts (recommendation (s)), in a communication dated 11 September 2023, the Government states that: (i) on 10 February 2023, the judiciary created a court of justices of the peace in criminal matters based in Guatemala City and consisting of ten justices, with an annual operating budget of US$229,875, to hear cases of non-compliance with labour and social welfare decisions; (ii) the creation of this court came into effect by means of Agreement No. 33-2022 of the Supreme Court of Justice, which also provides that this court of justices of the peace in criminal matters of the municipality of Guatemala will be competent outside working hours to announce the grounds for arrests, hear the detainees and decide the legal situation of the persons brought before it; and (iii) the new court will have national jurisdiction.
25. 415. Regarding the alleged obstruction of the registration of CENTRAMAGRETAL, in a communication dated January 2018, the Government states that on 18 January 2018, the Constitutional Court rejected the appeal against the denial of the amparo action filed by the union, thus confirming the judgment that established that amparo proceedings are not appropriate for challenging the requirements set by the Labour Directorate-General during the registration process.
26. 416. With respect to the registration of STETPETEN, in a communication dated June 2018, the Government states that the union was registered on 7 February 2018. As to the registration of SITRATEAVERAPAZ, in a communication dated June 2018, the Government states that the union has been registered since 9 February 2018. As regards SITRATCHIQUI, in a communication dated 23 March 2021, the Government states that the union was registered on 25 September 2017.
27. 417. Moreover, in a communication dated 12 May 2023, the Government states that it has proceeded with the registration of the following trade union organizations, namely: (i) the Union of Secondary Education Workers of San Marcos on 8 January 2016; (ii) the Union of Secondary Education Workers of Izabal on 8 January 2016; (iii) the Union of Secondary Education Workers of Santa Rosa on 18 January 2016; (iv) the Union of Secondary Education Workers of Sacatepéquez on 8 January 2016; (v) the Union of Secondary Education Workers of Quiché on 18 January 2016; (vi) the Union of Secondary Education Workers of Guatemala on 4 April 2016; (vii) the Union of Secondary Education Workers of the Municipality of Ixcan on 6 August 2016; (viii) the Union of Secondary Education Workers of Suchitepéquez on 28 August 2016; (ix) the Union of Secondary Education Workers of Sololá on 27 February 2017; (x) the Union of Secondary Education Workers of Escuintla on 25 September 2017; (xi) the Union of Secondary Education Workers in the Department of Chiquimula on 25 August 2017; (xii) the Union of Secondary Education Workers of the National Institutes of Basic and Diversified Education of the West on 2 November 2017; (xiii) the Union of Workers of the Ministry of Education of Guatemala on 1 August 2017; and (xiv) the Union of Education Workers at National Level on 11 December 2019.
28. 418. With regard to the new allegations concerning the situation of SITRARENAP, in a communication dated 5 August 2019, the Government states that: (i) the applications filed by Ms Sindy Mariela Morales Estrada, Mr Efraín Exequien Estupe López, Mr Kevin José Valiente Dávila, Mr Edgar Ernesto Oliva Leal and Ms Sandra Elizabeth Cifuentes de Pérez, against RENAP, before the Tenth Labour and Social Welfare Court, were granted on 4 January 2018 and the reinstatement of the applicants was ordered; (ii) on 13 June 2018, the Second Chamber of the Labour and Social Welfare Court of Appeal upheld the appealed decision and ordered RENAP to reinstate the workers and pay them their outstanding employment benefits. The Court considered the reinstatement order to have been complied with on 10 April 2019; and (iii) on 31 May 2019, RENAP was ordered to pay the workers’ employment benefits, an order that was complied with by RENAP, according to an official letter dated 30 July 2019.
29. 419. In a communication dated 28 June 2019, the Government states that the application filed by Mr Henry Neftalí Chacón y Cachón, against RENAP, before the Labour, Social Welfare and Family Multi-Judge Court of First Instance of the Department of Zacapa, was granted and the applicant’s reinstatement was ordered, a decision that was unsuccessfully appealed by RENAP. As a result, RENAP filed an amparo action on 21 May 2019.
30. 420. With regard to the new allegations concerning the situation of the Union of Workers Specializing in Secondary-Level Distance Learning of Escuintla (SITRATESCUINTLA) that the order to register the union limits the right to freedom of association while their employment relationship is in effect, in a communication dated 10 September 2019, the Government states that the ministerial decisions ordering the registration of unions do not constitute an act of retaliation or anti-union discrimination and that the text of the decision must be read in its entirety, which refers to the constitutional guarantee that workers have the right to freedom of association and which, in the operative part, orders the registration of SITRATESCUINTLA in the legal personality book of the Trade Union Register.
31. 421. With regard to the MSICG’s allegation that the Labour Directorate-General requires trade unions to send it copies of the membership application of each member, the Government states that the orders referred to in the complainant’s new allegations are inconsistent with the records of the Labour Directorate-General, as the registration numbers and dates do not coincide, or correspond to different matters, and that the Government is therefore unable to provide any information in this regard.

D. The Committee’s conclusions

1. 422. The Committee recalls that the present case, which led to an interim report in October 2015, refers to numerous allegations of violation by the public authorities of the right to register trade union organizations, as well as allegations of anti-union dismissals and anti-union acts against founding members of trade unions.
2. 423. With regard to the specific allegations of obstacles to the registration of numerous organizations, the Committee had requested the Government to proceed immediately with the registration of a number of trade unions and to provide further information on the non registration of others, as well as on the progress of several cases. The Committee had also requested the Government to take a series of general measures, including legislative measures, to ensure recognition of the right to trade union membership of various categories of workers, to respect union autonomy, to expedite considerably internal registration procedures, and to ensure that trade unions had access to rapid and effective administrative and judicial remedies if they were not registered.
3. 424. The Committee notes that in new allegations, the complainant reports that the previously alleged violations persist, while the Government provides information on the progress made since 2015, both in relation to the registration of a number of trade unions and to several initiatives aimed at addressing the more general issues mentioned in the preceding paragraph.
4. 425. The Committee first takes note of the information provided by the parties concerning the registration status of several trade union organizations in respect of which it had issued recommendations in its previous report.
5. 426. With regard to its recommendation (a) concerning the registration of SAMGUA and the recognition of the validity of the provision in the constitution of that organization which envisaged union membership for all workers at the Ministry of Education, regardless of the type of contract through which the employment relationship had been formalized, the Committee notes that: (i) in a communication dated 13 December 2015, the complainant alleges that after SAMGUA obtained legal personality on 1 October 2015, three years after submitting its application, the Ministry of Education filed an appeal to revoke the Ministry of Labour’s decision to grant SAMGUA legal personality in order to prevent it from being registered; and (ii) in a communication dated 22 May 2019, the Government states that SAMGUA was registered in the Public Trade Union Register on 21 September 2015. The Committee welcomes the registration of SAMGUA. The Committee requests the Government to provide information on the outcome of the appeal for revocation filed by the Ministry of Education and to confirm that all workers at the Ministry of Education may join SAMGUA, regardless of the type of contract through which the employment relationship has been formalized.
6. 427. With regard to its recommendation (b) concerning the registration of CETRAMACH, the Committee notes that: (i) the complainant states that it had to turn to the courts to eventually obtain the registration of CETRAMACH; and (ii) the Government reports that CETRAMACH was registered on 21 September 2015. The Committee welcomes this registration and will not pursue its examination of this allegation. The Committee trusts that, in the future, registration processes will be expedited so that trade union organizations will not have to go through the courts to be registered.
7. 428. With regard to its recommendation (c) inviting the CCS to resubmit its application for registration and urging the Government to process it without delay, the Committee notes that: (i) the complainant organization reports the registration of the CCS, but regrets that it had to amend its constitution to meet the illegal requirements of the Ministry of Labour and Social Welfare; and (ii) the Government reports that the CCS was registered on 21 September 2015. The Committee duly notes the registration of the CCS and will not pursue its examination of this allegation.
8. 429. With regard to its recommendation (d) requesting the Government to proceed without delay with the registration of CENTRIMAG, the Committee notes with regret that the Government and the complainant indicate that CENTRIMAG has not been registered.
9. 430. With regard to recommendation (e) concerning the modifications required to the statutes of CICO and the guarantees requested by the Committee from the Government to ensure that CICO would be able to represent the workers envisaged in its constitution, the Committee notes that: (i) the complainant alleges that the Government did not register CICO or ensure that CICO would be able to represent the workers envisaged in its constitution; and (ii) the Government reports five modifications to the statutes of CICO requested by the labour administration, including: removal of the word “workers”, indication of the occupation or trade of its members, as well as their place of work, and modification of the nature of the organization, indicating whether it was of an occupational or “campesino” nature; and (iii) in the absence of a response from CICO to the requested modifications, the application for registration was shelved after six months. The Committee takes note of this information. The Committee recalls that in its previous examination of the case, when it noted that the complainant had indicated that CICO was not an occupational union but an organization by branch of activity designed to group together farm workers from the departments of Huehuetenango, San Marcos, Quiché and Totonicapán, among others, and that the administration had required it to amend the categories of workers covered, the Committee had emphasized that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 502]. The Committee expresses concern about the amendments required to the categories of workers that CICO wished to group together. The Committee requests the Government to ensure, in the future, respect for the autonomy of newly formed trade union organizations concerning the categories of workers they intend to group together.
10. 431. With regard to its recommendation (f) concerning the registration of SINATRAMS, the Committee notes with satisfaction that the Government reports that this organization was registered on 18 January 2016. The Committee will therefore not pursue its examination of this allegation.
11. 432. With regard to recommendation (g) requesting the complainant to send its observations in relation to the Government’s indications that several workers had complained that their affiliation was obtained improperly and that the union did not have members in three of the six companies covered by its statutes, the Committee notes that the complainant states that none of the members of the SITRAGFIT have left the union, which shows that the Government’s allegations concerning the validity of the memberships is unfounded, and that the Government has not permitted the registration of the union. Noting that the complainant has not provided its observations on the alleged absence of members in three of the six companies covered by the statutes of SITRAGFIT, the Committee will not pursue its examination of this allegation.
12. 433. With regard to recommendation (h) requesting the Government to proceed with the registration of the Union of Workers and Employees at the Ministry of Education and Private Schools, the Committee notes with regret that the Government reiterates that: (i) the file of the union in question was shelved on 3 March 2014 due to “irremediable flaws”; and (ii) this refusal to register the union was based on its non-compliance with section 215 of the Labour Code (which provides that unions must be occupational unions, company unions or industrial unions) and section 3 of the Act on Unionization and Regulation of Strike Action by State Employees (which provides that state employees may organize themselves by state agencies, ministries, autonomous or decentralized entities or by branch or trade), which establish the types and forms of trade union organizations permitted. In this respect, the Committee recalls that it had noted in its previous examination of the case that it should be possible for a trade union organization in the education sector to group together workers from both public and private schools, on the understanding that each group should conduct separate negotiations, being subject to a separate budget and separate regulations. Emphasizing once again that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, the Committee requests the Government to take the necessary measures, including legislative measures, if necessary, to grant greater autonomy to newly formed trade union organizations in the determination of their structure.
13. 434. With regard to recommendation (i) requesting the immediate registration of S.T.E.B.I.N.T.J., the Committee notes with satisfaction that the Government reports that this organization was registered on 15 December 2015. The Committee will therefore not pursue its examination of this allegation.
14. 435. With regard to recommendation (j) requesting the complainant to provide its observations on the reasons given by the Government for the non-registration of four local public sector trade union organizations, the Committee notes that: (i) it has not received a reply from the complainant on this matter; (ii) the Government reports the registration of the Union of Workers of the Municipality of San Pedro Sacatepéquez in the Department of San Marcos on 16 January 2012, SINEMUNIPAL on 13 April 2012 and SITRAUM on 6 November 2018; and (iii) the Government reiterates that it did not register the Union of Workers of the Municipality of Pachalum because some of its founding members were municipal police officers. The Committee notes with satisfaction the registration of three organizations and, in the absence of information from the complainant concerning the non-registration of the fourth organization, will not pursue its examination of this allegation.
15. 436. With regard to recommendation (k) requesting the Government to provide information on the dates and the reason for the shelving of registration applications from 13 trade unions because more than six months had elapsed since the last notification from the labour administration, the Committee notes that, in addition to providing the dates of the respective shelvings, the Government reports that: (i) two of these organizations (the Union of Workers of the Municipality of Usumatlán and the Union of Workers at SEAK HWA SA) were registered; (ii) with respect to the Union of Collection Agents at Cable Star SA, the file was shelved due to the resignation and withdrawal by the union members; (iii) with respect to the General Union of Municipal Employees of Coatepeque, its registration application was shelved due to the fact that the founding workers performed their duties in different municipalities; (iv) with regard to the Union of Workers of the Municipality of Santa Lucía Milpas Altas, its application for registration was shelved due to the lack of response to the preliminary request in which the union members were asked to submit the charter and constitution signed by the secretary and the other members; and (v) the applications for registration from eight other organizations (the Union of Workers at Avandia SA, the Union of Education Workers at National Institutes for Secondary-Level Distance Learning in Izabal, the Union of Workers of the Municipality of Santa Cruz El Chol in the Department of Baja Verapaz, the Union of Workers of the Municipality of San Miguel Tucurú in the Department of Alta Verapaz, the Teachers’ Union of Jalapa, Union of “Teachers for Change”, the Union of Workers of the Municipality of Villa de Tejutla in the Department of San Marcos and the Union of Workers of the Municipality and Electricity Company of Guastatoya) were shelved due to their failure to comply with the amendments required by the labour administration and because more than six months had elapsed since the last notification from the administration. The Committee takes note of this information. Noting that it does not have any specific information on the nature of the amendments requested by the labour administration to the eight newly formed trade union organizations whose registration applications have been shelved, the Committee again requests the Government to provide such information.
16. 437. With regard to recommendation (l) requesting the Government to provide information on the reasons for and outcome of the legal proceedings still in progress concerning the applications for registration from five trade union organizations, the Committee notes that the Government reports that: (i) the legal proceedings initiated by the company against the Ministry of Labour and Social Welfare regarding the registration of the Union of Workers at the Port of Santo Tomás de Castilla (SINTRAPSATCA) were rejected by the competent courts; (ii) the legal proceedings against the registration of SITRATERNIUM instituted by the company concerned were also rejected; (iii) the registration of SIDETRALICO was refused by the courts on the grounds that it did not have the minimum number of members required by law, since 12 of the 27 founding workers of the organization had already been dismissed when the union was established; (iv) the various legal appeals filed to challenge the refusal to register SIPROSAT on the grounds it did not meet the required number of members because some of them were considered to occupy positions of trust were rejected. With regard to the Union of Workers of the Directorate-General for Sports and Recreation at the Ministry of Sport (SINTRADIGERE), the Committee notes that its initial registration was eventually revoked following administrative and judicial appeals filed by the Ministry of Culture and Sport on the grounds that the founding members of the union were fixed-term employees, some of whom were employed on the basis of civil contracts (budget item 029). As to the information provided by the Government concerning the non-registration of SIDETRALICO on the grounds that workers dismissed prior to joining the union should not be counted among its members, the Committee recalls that it has considered that a provision excluding dismissed workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice [see Compilation, para. 410]. The Committee requests the Government to take due account of the above-mentioned criterion in any administrative or judicial proceedings that may still be pending with respect to the registration of SIDETRALICO. With regard to the cancellation of the registration of SINTRADIGEDERE on the grounds that it was established by workers employed by the Ministry of Culture and Sports on the basis of fixed-term contracts and civil contracts, the Committee recalls that all workers must be able to enjoy the right to freedom of association regardless of the type of contract by which the employment relationship has been formalized [see Compilation, para. 327], and that it has already underlined, including in the context of the present case, the need for the Government of Guatemala to recognize the right to organize of workers who are hired by the State on the basis of civil contracts for professional services [see 363rd Report, Case No. 2768, March 2012, paras 641 and 644; 376th Report, Case No. 3042, October 2015, para. 532]. The Committee requests the Government to take the necessary measures in this respect.
17. 438. With regard to recommendation (m) requesting the Government to review its decisions not to register SITRAPVSAT and SITRAMUNIRODEO in the light of the principles underlined by the Committee relating to workers occupying positions of trust, the Committee notes that: (i) the complainant states that the Government has continued to refused to register SITRAPVSAT, despite the Committee’s recommendation; and (ii) the Government indicates that the administrative appeals filed in 2012 against the refusal to register SITRAPVSAT were rejected and that there is no other appeal pending. While taking note of this information, the Committee recalls once again that an excessively broad interpretation of the concept of “worker of confidence” [worker occupying a position of trust], which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association [see Compilation, para. 385]. As stated in its previous examination of the case, the Committee also reiterates that, taking into consideration the numerous reported cases of delay in the registration of trade union organizations caused by the time spent by the labour administration on examining the types of employment relationship and the categories of job occupied by union founders, the Committee considers that issues involving complex legal appraisals in certain cases, such as determining whether or not the union’s founders occupy positions of trust, should not delay the registration process. The Committee therefore requests the Government to take the necessary steps to ensure that such issues are dealt with after registration in the event of any objections.
18. 439. With regard to recommendation (n) requesting the Government to provide information without delay on the registration of the Union of the Education Ministry of the Department of Alta Verapaz, the Union of the Ixcan Quiché Health Sector and the Guatemalan Union of Labour Supporters and Defenders of Human Rights (or, if applicable, to indicate the reasons that prevented registration), the Committee notes, first, that the Government indicates that the Union of the Ixcan Quiché Health Sector has been registered. The Committee also notes that: (i) the complainant states that the Government has continued to refuse to register the Guatemalan Union of Labour Supporters and Defenders of Human Rights; (ii) the Government states that on 20 November 2013 the union was notified of several recommendations for the processing of its file and that the Labour Directorate-General shelved the file because more than six months had elapsed without any activity; and (iii) the Government states that the registration file of the Union of the Education Ministry of the Department of Alta Verapaz was shelved due to its late submission, as the application had been submitted more than 20 days after the constituent assembly, and that no new application had been submitted since. The Committee takes note of the information provided concerning the Union of the Education Ministry of the Department of Alta Verapaz. The Committee notes, however, that the Government has not clarified the content of the labour administration’s recommendations to the Guatemalan Union of Labour Supporters and Defenders of Human Rights and requests it to do so.
19. 440. The Committee takes note of the complainant’s new allegations that the labour administration has continued to obstruct the registration of several trade union organizations by imposing inappropriate orders and recommendations making registration conditional on the amendment of substantive aspects of the organizations’ constitutions. The Committee notes that the complainant specifically refers to the situation of the following organizations whose registration was allegedly obstructed in 2016 and 2017: SITRATEAVERAPAZ, SINDIOBREROJOCOTÁN, SITRATCHIQUI, CENTRAMAR, CENTRAMAGQUICHÉ and SITRAMSALT. The Committee notes in this respect that the Government reports the registration of SITRATCHIQUI in 2017 and of SITRATEAVERAPAZ and STETPETEN in 2018, as well as the denial of the amparo action filed by CENTRAMAGRETAL. The Committee notes that the Government has not provided its observations on the registration of the other four trade union organizations and requests it to do so.
20. 441. The Committee had also requested the Government to take general steps: (i) to ensure recognition of the right to trade union membership of workers who provide services for the State on the basis of civil contracts; (ii) to ensure that issues involving complex legal appraisals in certain cases, such as determining whether or not the union’s founders occupy positions of trust, do not delay the registration process, since these could be dealt with after registration in the event of any objections; (iii) to expedite considerably the handling of registration applications, with a view to adopting an approach that enables the rapid resolution, in conjunction with the founders of trade union organizations, of issues of substance or form that arise and to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered; and (iv) eliminate, in consultation with the most representative social partners, the various legal obstacles to the free establishment of trade union organizations referred to in the preceding paragraphs (taking the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions).
21. 442. With regard to the need to recognize the right to trade union membership of workers who provide services for the State on the basis of civil contracts (recommendation (a)), the Committee notes that the complainant states in its additional allegations that the Ministry of Labour and Social Welfare continues to ask affiliated workers to indicate under which budget item they are employed in order to refuse the registration of the organizations concerned and cites several organizations whose specific situations have already been examined in preceding paragraphs of these conclusions (CENTRAMGQUICHÉ, CENTRAMAGRETAL, SITRATEAVERAPAZ, CENTRAMAR, SINDIOBREROJOCOTÁN and STETPETEN). The Committee also notes that, with respect to workers in secondary-level distance learning (workers providing distance public education services), the organization alleges that the Ministry of Labour and Social Welfare only recognizes a temporary right to trade union membership, which is strictly limited to the duration of their fixed-term contracts. The Committee notes that, for its part, the Government states that: (i) in the context of the implementation of the road map on freedom of association adopted by the Government in 2013 as part of the follow-up to the complaint filed in 2012 under article 26 of the ILO Constitution for the alleged violation of Convention No. 87, a letter was sent on 7 March 2018, at the request of the members of the National Tripartite Committee on Labour Relations and Freedom of Association, to the Labour Commission of the Congress of the Republic, informing it of the tripartite agreement on the application of labour legislation to temporary contracts and special schemes in the public sector; and (ii) the Ministry of Labour and Social Welfare has registered several unions of workers in secondary-level distance learning, such as SITRATESCUINTLA, thus recognizing such workers’ constitutional right to freedom of association.
22. 443. The Committee notes the information provided by the parties. At the legislative level, the Committee takes due note of the tripartite agreement reached in 2018 to explicitly recognize in legislation the applicability of labour legislation to temporary contracts and special schemes in the public sector. The Committee notes with regret, however, that more than five years later, the legislative reform that was agreed on a tripartite basis has yet to occur. The Committee therefore once again urges the Government to take all the necessary steps to amend the national legislation without delay so as to fully recognize in the legislation the right to trade union membership of workers employed by the administration on the basis of civil contracts. Noting that this issue is being specifically monitored by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its supervision of the application of Convention No. 87, the Committee refers this legislative aspect of the case to the CEACR.
23. 444. On a practical level, the Committee notes both the complainant’s allegations concerning the continued obstruction of the right to trade union membership of workers who provide services for the State on the basis of civil contracts and the information provided by the Government concerning the registration of a large number of trade unions in the public sector. The Committee notes, however, that in its various communications, the Government does not specifically refer to the alleged disregard for the trade union membership rights of the above-mentioned categories of workers in the public sector and that it has not provided information on the registration of several organizations in respect of which the complainant alleges a violation of the trade union rights of workers employed by the public administration on the basis of civil contracts. Recalling that all workers must be able to enjoy the right to freedom of association regardless of the type of contract by which the employment relationship has been formalized [see Compilation, para. 327], the Committee once again urges the Government to take all the necessary steps to ensure that the Ministry of Labour and Social Welfare recognizes in practice the right to trade union membership of workers who provide services for the State on the basis of civil contracts. The Committee requests the Government to keep it informed in this regard.
24. 445. With regard to the need to take the necessary steps, as a matter of urgency, to revise section 215(c) of the Labour Code so that it is possible to establish industrial trade unions (recommendation (d)), the Committee notes that the complainant states that no progress has been made in this regard, while the Government refers to the initiatives taken in the context of the implementation of the 2013 road map as part of the follow-up to the complaint filed in 2012 under article 26 of the ILO Constitution. The Committee takes particular note in this regard of: (i) the tripartite agreements on a series of principles reached in 2018 with respect to the requirements for establishing industrial unions; and (ii) the inclusion of the issue of industrial unions in the work plan of the Subcommittee on Legislation and Labour Policy of the National Tripartite Committee on Labour Relations and Freedom of Association, and the planning of ILO technical assistance in this regard.
25. 446. While taking due note of this information, the Committee notes with regret that more than five years after a tripartite agreement on a series of principles to revise the requirements for the establishment of an industrial union was concluded, section 215(c) of the Labour Code has still not been revised. The Committee recalls that, under the section in question, the establishment of an industrial union requires the affiliation of 50 per cent plus one of the workers in a given sector. Recalling that the legally required minimum number of members must not be so high as to hinder in practice the establishment of trade union organizations [see Compilation, para. 435], the Committee notes with concern that, in the context of the numerous cases of newly formed trade unions which are examined in the present case, it has not been informed of the registration of any sectoral trade unions despite several attempts in this regard. Recalling once again that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Compilation, para. 502], the Committee once again urges the Government to take the necessary steps to revise section 215(c) without delay. Noting that this issue is being specifically monitored by the CEACR in its supervision of the application of Convention No. 87, the Committee refers this legislative aspect to the CEACR in its supervision of the application of Convention No. 87. In addition, the Committee once again urges the Government to take the necessary steps to proceed with the registration of trade union organizations that seek to group together workers from different companies in the same sector.
26. 447. With regard to the Committee’s request to the Government to expedite considerably its internal registration procedures, adopting an approach that enables the rapid resolution, in conjunction with the founders of trade union organizations, of issues of substance or form that arise, and to ensure that trade unions have access to rapid and effective administrative and judicial remedies (recommendations (c) and (o)), the Committee notes the complainant’s new allegations that: (i) the Ministry of Labour and Social Welfare continues its widespread practice of imposing inappropriate “prerequisites” and ”recommendations” requesting substantial revisions of the constitutions of newly formed trade union organizations; (ii) the effect of this practice of the Ministry of Labour and Social Welfare combined with the case law of the Constitutional Court is twofold: on the one hand, refusal to comply with such “prerequisites/recommendations” results in the shelving of the application for registration while, on the other, neither administrative nor amparo appeals can be filed against these requests for amendments because these orders are not considered administrative decisions; and (iii) as a result of the above, the only option available to newly formed trade union organizations is to challenge the shelving of the application for registration before the labour courts, a procedure which can take several years . The Committee notes that, for its part, the Government states that: (i) according to the statistical records of the Ministry of Labour and Social Welfare, a high percentage of the applications submitted for the registration of trade unions are successful, which shows that there are no obstacles to the free establishment of trade unions; (ii) the Ministry of Labour and Social Welfare is always available by telephone, email or appointment to answer any questions the newly formed unions may have; (iii) the Ministry of Labour and Social Welfare published the “Trade Union Booklet” in December 2018, containing clear and simple information on how to obtain union registration, following its presentation to the National Tripartite Committee on Labour Relations and Freedom of Association; (iv) in the framework of the National Tripartite Committee on Labour Relations and Freedom of Association, the Government sent the workers’ sector an invitation to a working meeting in May 2019 to discuss the process for establishing trade union organizations and to strengthen that process through dialogue; (v) on 8 June 2022, the Ministry of Labour and Social Welfare signed a letter of intent with the Ministry of Labour and Social Welfare of the Republic of Argentina, requesting support and assistance from the Argentine Ministry so that Guatemala can have a strengthened and more robust Public Trade Union Register in the Labour Directorate-General, similar to the one in Argentina; (vi) the Ministry of Labour and Social Welfare has issued Ministerial Agreement No. 214-2023 of 12 May 2023, which regulates the procedure for issuing union identification cards to members of executive committees and advisory councils of trade unions, which will allow them to be quickly and simply identified when performing their duties, through the use of a quick response (QR) code; and (vii) on 12 December 2023, the Guide to Freedom of Association, replacing the Trade Union Booklet of 2018, was adopted with a view to facilitating the registration of trade union organizations, strengthening legal certainty and reducing the discretion of the labour authorities.
27. 448. The Committee welcomes the steps taken by the Government to expedite the various administrative formalities of the registration process, particularly through electronic tools. The Committee also welcomes the initiatives to address the issues relating to the registration of trade unions through social dialogue in the National Tripartite Committee on Labour Relations and Freedom of Association. The Committee also notes that, according to the data submitted by the Government to the CEACR in 2022, between 1 January 2021 and 15 August 2022, out of the 76 applications received, 74 trade union organizations were registered by the Ministry of Labour and Social Welfare. The Committee nevertheless notes that allegations of obstacles to the registration of certain organizations persist, and that the Government has failed to provide the reasons for the non-registration of several of them. In the light of the above and the first initiatives taken in this respect, the Committee requests the Government to take the necessary steps to ensure that the issues surrounding the registration of trade union organizations are regularly monitored, discussed with the representative national federations and addressed in a tripartite dialogue in the National Tripartite Committee on Labour Relations and Freedom of Association. The Committee requests the Government to keep it informed in this regard.
28. 449. With regard to the allegation that it is impossible to file rapid and effective appeals against requirements to amend constitutions of newly formed trade union organizations, the Committee notes that it has not received the Government’s specific observations in this regard. The Committee is therefore compelled to once again request the Government to take the necessary steps to ensure that trade unions have access to rapid and effective administrative and judicial remedies if they are not registered.
29. 450. With regard to the request that issues involving complex legal appraisals, such as determining whether the union’s founders occupy positions of trust, do not delay organizations’ registration process (recommendation (b)), the Committee refers first to the conclusions reached in paragraph 71 of the present case when examining the registration of certain trade unions in particular. The Committee also notes that the complainant alleges that the Constitutional Court has endorsed the labour administration’s practice of informing employers of applications for the registration of trade unions in their company so that the employers can, on the one hand, identify any workers occupying positions of trust or other categories of workers who, according to the administration, should not have the right to organize and, on the other, contest the application for the registration of the trade union. The Committee notes with regret that the Government has not provided its observations in this regard. Noting that, in its supervision of the application of Convention No. 87, the CEACR has requested the Government to provide specific information in this respect, the Committee refers this matter to the CEACR.
30. 451. The Committee lastly takes note of the complainant’s new allegations that: (i) under section 225(e) of the Labour Code, trade unions must send a certified roll of all their members, including their full names, personal ID numbers and occupation or trade, to the Labour Directorate-General once a year; (ii) these data have been used to commit acts of anti-union discrimination against workers and, more specifically, have resulted in dismissals and various acts of anti-union violence; (iii) since 2016, the labour administration has also started to illegally require trade unions to add the membership application of each new union member in order to have their union rolls registered, knowing that the membership application contains sensitive information about each member, such as their phone number, email and mailing address; and (iv) seven unions received such requests between 2016 and 2018. The Committee notes that, for its part, the Government states that the orders referred to in the complainant’s new allegations are inconsistent with the records of the Labour Directorate-General, as the registration numbers and dates do not coincide, or correspond to different matters, and that the Government is therefore unable to provide any information in this regard. The Committee takes due note of this reply but observes that the Government does not comment on the alleged practice of requiring the personal data of all members of trade union organizations. Recalling the risk of reprisals and anti-union discrimination inherent in demands for lists of the names of members of an organization and copies of their membership cards for the determination of the representativity of the organization [see Compilation, para. 535], the Committee requests the Government to provide its observations in this regard.
31. 452. In general, the Committee notes the initiatives taken by the Government to expedite registration processes and observes that, according to the information provided by the Government covering the period from 1 January 2021 to 15 August 2022, the proportion of applications for trade union registration that have been granted has increased significantly. The Committee nevertheless notes that substantive legislative and institutional difficulties that could significantly restrict the exercise of freedom of association (inability to establish sectoral unions, obstacles to the registration of organizations affiliating workers employed by the public administration on the basis of civil contracts, impact of workers considered to be occupying positions of trust on the registration process, access by unregistered trade unions to effective remedies) remain. Noting that the registration of trade unions forms part of the complaint filed against Guatemala in June 2023 under article 26 of the ILO Constitution by several Workers’ delegates to the International Labour Conference, the Committee requests the Government to give due consideration to the points raised in these conclusions and recommendations and to take all the necessary steps in this regard without delay.
32. 453. With regard to recommendation (p) concerning allegations of a series of acts of anti-union discrimination against officials and members of SITRASEPAZ, the Committee first takes note of the complainant’s additional allegations that: (i) 22 members of SITRASEPAZ were illegally dismissed, ignoring the judicial summons issued by the courts on 14 and 16 July 2017; (ii) in 2017, the fixed-term contracts of several union members were arbitrarily terminated; (iii) the Ministry of Labour and Social Welfare demanded, as a condition for holding a round-table discussion with the union, that Mr Luis Antonio Mérida Ochoa step down as director of conciliation at the Peace Secretariat, on the grounds that it was a position of trust that could not be held by a union official; (iv) the public authorities have refused to negotiate the draft collective agreement submitted by SITRASEPAZ, citing the presidential prohibition on collective bargaining in the public administration set out in Presidential Memorandum No. 02-2017. The Committee then notes that, for its part, the Government stated in communications in 2016 and 2020 that: (i) the action for reinstatement initiated by Mr Mérida Ochoa following the termination of his contract was rejected by the courts, and the final decision on the appeal filed by him is pending; (ii) 15 workers were dismissed following the closure of the archives directorate of the Peace Secretariat; 10 of these workers filed an action for reinstatement, which was granted but only for the remainder of their contracts, as there were no other positions available in the Peace Secretariat following the closure of the archives directorate; and (iii) the criminal case against Mr Luis Antonio Mérida Ochoa was closed, as it had been dismissed by the prosecution. While taking due note of these various elements, the Committee also notes that, according to publicly available information, the Peace Secretariat was dissolved on 1 August 2020. The Committee requests the Government to provide information on the final outcome of the action to reinstate Mr Mérida Ochoa and trusts that the Government has ensured that the operations to close the Secretariat and any reassignment of its workers have been free of any anti-union treatment.
33. 454. With regard to the part of recommendation (q) concerning the alleged anti-union dismissals of members of SIDETRALICO, the Committee notes that the Government reports that: (i) on 7 and 8 August 2012, the Heart Disease Association dismissed 20 workers due to restructuring, prior to receiving notice of the establishment of a trade union; (ii) 12 of the dismissed workers were subsequently involved in the establishment of SDETRALICO; and (iii) the various courts hearing the case found that, at the time of their dismissal, the 12 workers did not enjoy special protection against dismissal. The Committee takes note of this information and will not pursue its examination of this allegation.
34. 455. With regard to the part of recommendation (q) concerning the alleged anti-union dismissals of members of SITRAPDH, the Committee notes that the Government states that seven members of SITRAPDH were eventually reinstated in 2016 by the Office of the Human Rights Ombudsman after lengthy proceedings due to the filing of an amparo action by that Office. The Committee takes due note of this information, which is consistent with the Committee’s findings in this regard in Case No. 3139 [see 396th Report of the Committee, October 2021, para. 380]. In the light of the above, the Committee will not pursue its examination of this allegation.
35. 456. With regard to recommendation (r) concerning the allegations of anti-union discrimination against STAYSEG and SITRADEMEG, the Committee notes that the Government states that: (i) Mr Byron Rolando Fuentes León, a SITRADEMEG official, obtained first and second-instance judgments ordering his reinstatement and that the amparo actions filed by the Ministry of Education against these decisions were rejected; (ii) Ms María Magdalena Aju Upun, a member of the advisory council of STAYSEG, was reinstated in her post on 28 July 2016; and (iii) the request for judicial authorization to dismiss Mr Jorge Byron Valencia Martínez, general secretary of STAYSEG, was rejected by the courts at every instance. The Committee takes due note of this information and will not pursue its examination of these allegations.
36. 457. The Committee notes that, since it last examined the present case, the complainant has submitted additional allegations of acts of anti-union discrimination allegedly committed against officials or members of trade union organizations in the context of their efforts to obtain union registration. The Committee notes, first of all, that the complainant alleges the commission of several anti-union acts against members of SAMGUA, including the dismissal of a teacher. The Committee notes that the Government has not provided its observations in this regard and requests it to do so without delay. The Committee also takes note of the complainant’s allegations concerning SITRARENAP officials and members that: (i) in November 2017, the contracts of six workers who were members of the newly formed union were terminated and these workers subsequently obtained judicial decisions ordering their reinstatement; (ii) on 21 December 2017, the administration terminated the contracts of 55 additional workers; and (iii) following the registration of the union in March 2018, the administration arranged the anti-union transfer of Mr Melvin Estuardo Zacarías Velásquez, the union’s internal relations secretary; this transfer was annulled by the courts, but RENAP did not comply with the order to reinstate the worker in his original post. The Committee notes that the complainant further states that it fears that RENAP will terminate the contracts of all the workers in the union, since all its workers are employed under budget item 029 (civil employment). The Committee notes that, for its part, the Government states that: (i) five members of the newly formed trade union who filed a legal action against the termination of their contracts in November 2017 obtained first and second-instance judgments in their favour and were effectively reinstated, as found by the courts in April 2019; and (ii) the sixth person, Mr Henry Neftalí Chacón y Cachón, obtained first and second-instance judgments ordering his reinstatement, in response to which RENAP filed an amparo action on 21 May 2019. While noting this information, the Committee requests the Government to: (i) provide information on the outcome of the above-mentioned amparo action; (ii) report on compliance with the reinstatement of the union’s internal relations secretary to his former post; and (iii) take the necessary steps to ensure full respect for freedom of association in RENAP.
37. 458. The Committee further notes the additional allegations of anti-union discrimination against officials and members of SITRAGFIT. The Committee recalls that in its recommendation (g) it expected that the pending judicial rulings relating to the dismissal of the founding members of SITRAGFIT would be handed down in the very near future, and that all existing and pending reinstatement orders would be complied with immediately. In this regard, the Committee notes that the complainant alleges that: (i) after lengthy legal proceedings, final judgments calling for the reinstatement of the workers in question were finally obtained; and (ii) however, the complainant points out that upon the reinstatement of the workers, the employer dismissed them again as soon as the implementing minister had left. The Committee notes that the Government, for its part, states that: (i) a founding worker member of SITRAGFIT was reinstated by the company Plaxo SA on 7 August 2015; (ii) three SITRAGFIT members and employees of the Workers’ Bank (hereinafter the Bank) withdrew their legal actions, while two other workers were reinstated in 2014 and 2018, respectively; (iii) with regard to the reinstatement of Ms Ingrid Janeth López Teni, her immediate reinstatement was ordered on 8 October 2018, but the worker had yet to confirm the implementing minister’s report recording her reinstatement; (iv) the application for reinstatement filed by Ms Odeth Julia Elena Roldán Ramírez against the Bank was shelved after the court asked her to prove that the newly formed union (SITRAGFIT) was indeed a union of the Bank due to a discrepancy in the names, and the worker unsuccessfully appealed the order; and (v) Ms Deysi Elisabeth López Mas de Góngora was initially reinstated by the Bank, by court order, before being dismissed again, and her reinstatement was ordered once again, which was implemented after a series of appeals, and the worker claims that she has yet to be paid her unpaid wages and benefits. The Committee takes note of these various reports. While noting that several founding members of SITRAGFIT were eventually reinstated, the Committee notes with concern that most of these reinstatements took place several years after the dismissals and that in one case the reinstatement had to be ordered a second time following another dismissal. While noting with interest the establishment, on 10 February 2023, of a collegial peace court in criminal matters that will hear cases of non-compliance with labour and social welfare decisions and non-compliance with reinstatement orders in the public administration, the Committee requests the Government to step up its efforts to ensure the immediate and effective enforcement of court orders for reinstatement in response to anti-union dismissals.