Rapport définitif - Rapport No. 320, Mars 2000

1. 681. The complaint is contained in a joint communication by the Federation of Bank and Insurance Employees (FESEBS) and the Trade Union Federation of Forestry, Timber, Environmental and Natural Resources Workers of Guatemala (FESITRASMMAR) dated 28 April 1999. The Government replied in a communication of 13 December 1999.
2. 682. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 683. In their joint communication of 28 April 1999, the Federation of Bank and Insurance Employees (FESEBS) and the Trade Union Federation of Forestry, Timber, Environmental and Natural Resources Workers of Guatemala (FESITRASMMAR) allege that, starting in May and June 1998, the assistance provided by labour inspectors in actions brought by state sector employees was suspended, so that many requests for intervention submitted to the General Inspectorate of Labour were delayed, blocked or turned down. The reason given for such abrupt action by the labour authorities was that instructions to that effect had been issued by the Minister of Labour and Social Security. When trade union leaders asked for a meeting with the Minister to discuss the situation, he cited a legal review carried out by his legal adviser and Deputy Minister. The union leaders expressed their disagreement.
2. 684. The complainants add that at meetings of the Tripartite Commission in early 1999, Ministry of Labour advisers communicated the text of Circular LFLL/oars, No. 454-98, of 21 September 1998, which was signed by the Minister of Labour and Social Security, together with Circular No. 3-1998-09-23, signed by the Assistant Inspector-General of Labour, and instructions to the General Inspector of Labour henceforth to refrain from intervening in matters relating to the public sector, in accordance with the law.
3. 685. The complainants indicate that if the procedure for revocation or review of a decision provided for under section 275 of the Labour Code is to be used, it must be initiated within 48 hours of the decision being announced. It is clear that, since the trade union organizations concerned were not informed of the circular and the associated documents in September 1998, it was not possible to bring any action within the legal framework provided by Guatemalan law. Furthermore, the circular in question does not have the character of a formal decision and therefore cannot be appealed under Guatemalan law. In the opinion of the complainants, this violates Convention No. 87, since it limits or hinders the exercise of trade union rights. Section 2 of the Act respecting judicial bodies states that "the law is the basis of legislation"; an attempt has been made in the present case to establish a legal standard unfavourable to members of public sector unions on the basis of a judgement given by the legal adviser at the Ministry of Labour and the incumbent Minister. A "circular" cannot be a source of law and Circular LFLL/oars, No. 454-98, of 21 September 1998, should therefore be revoked.

B. The Government's reply

1. 686. In its communication of 13 December 1999, the Government states that labour relations between the State and its employees in Guatemala are governed by the provisions of the Civil Service Act, in accordance with article 108, paragraph 1, of the Constitution. Under the terms of articles 2 and 191 of the Labour Code, public servants are excluded from the scope of the Labour Code. It should be noted that the Labour Inspectorate is a labour institution established by the Labour Code.
2. 687. Section 2 of the Civil Service Act states its general purpose as being "to regulate relations between the public administration and its employees with a view to ensuring the efficiency of the service as well as equitable treatment and job satisfaction for the employees themselves, and to establish standards for the application of a personnel administration system". Section 19(6) of the Act states the mandate of the National Civil Service Board in the following terms: "To investigate and resolve by administrative means appeals that may arise in connection with the application of this Act in the following areas: recruitment, selection, appointments, assignment or reassignment of posts, transfers, suspensions, redundancies and dismissals". With regard to the protection of the rights of public servants in the broader sense, section 80 of the Act, which concerns the administrative procedure for challenging decisions taken by heads of civil service departments, refers to claims that may arise under the provisions of section 19(6); however, it also widens the frame of reference by allowing other claims which arise from the other provisions of the Act. Section 80 uses the following wording: "Claims to which section 19(6) of this Act refers and others contained in it must be substantiated in the following form ...". The procedure by which the National Civil Service Board settles disputes arising between the State and its employees is restricted to disputes pertaining to individual, rather than collective, labour relations, given that the Act dates from 1969 when freedom of association, collective bargaining rights and the right to strike of state employees were not recognized (these rights were restored with the Constitution of 1986). The present Constitution recognizes the right of state employees to strike but under article 116 that right may be exercised only "in the manner specified by the relevant laws".
3. 688. The Government adds that the relevant law in this case is Congressional Decree No. 71-86 containing the Act respecting association and strike action by state employees. According to section 2 of the Act,
   • As regards the establishment and organization of trade unions, federations and confederations of state employees and their decentralized and autonomous bodies, and as regards the regulation of their functioning and the exercise of their rights, state employees and their decentralized and autonomous bodies shall be subject to the provisions of the Labour Code and Decree No. 1441 of the Congress of the Republic, where those provisions do not contravene the principles of the Constitution.
4. 689. On the basis of these provisions, the administrative enforcement of the individual rights of public servants is governed by the procedure established under the Civil Service Act and, in such cases, the competent body for settling any disputes is the National Civil Service Board, rather than the General Inspectorate of Labour. If this were not the case, there would be overlap with the administrative bodies responsible for hearing individual labour disputes in the public sector. It would not be possible to conceive of a legal system in which, on the one hand, the National Civil Service Board could rule on a dismissal in accordance with the powers given to it under section 81 of the Civil Service Act, and, on the other hand, the Labour Inspectorate, without statutory powers, could bring an action before a labour tribunal against a public official responsible for violating the Civil Service Act. The inappropriate application of the latter mechanism has only created confusion, to the detriment of those state employees who bring cases before the General Inspectorate of Labour - which has no legal power and lacks the administrative means to settle a dispute - and therefore cease to pursue the case before the National Civil Service Board, the body which is competent to hear such cases and decide whether or not an application is receivable. The result of this is that the claim ceases to be enforceable once the statutory time limit has expired.
5. 690. Unlike the exercise of individual rights of state employees, which comes under the jurisdiction of the National Civil Service Board at its administrative headquarters, collective rights of association and collective bargaining relating to applications for official recognition, registration of trade union bodies, the irremovability of representatives and other aspects of their legal status, are dealt with by the General Directorate of Labour and the General Inspectorate of Labour; certification of collective labour agreements, notification of collective accords and mediation in collective talks are dealt with by the General Inspectorate of Labour; certification of collective accords regarding conditions of employment is dealt with by the Office of the Minister of Labour, in accordance with section 2 of Decree No. 71-86 and specific provisions of the Labour Code and its regulations.
6. 691. The purpose of the judgement of 16 September 1998 issued by the Legal Department of the Minister of Labour was to clarify the situation described above and to promote the correct application of labour law to the benefit of public servants themselves, by eliminating the discretional powers of intervention of the Labour Inspectorate in matters for which it is not competent. On the basis of that judgement, Circulars No. 454-98 signed by the Ministry of Labour and No. 3-1998-09-23 signed by the Inspector-General were issued. Article 154 of the Constitution contains the following provision: "Public service: responsibility before the law. Officials are custodians of authority and legally responsible for their official conduct. They are subject to, and never above, the law". In accordance with this provision and the principle embodied in section 4 of the Act respecting judicial bodies, the corps of labour inspectors is the sole body authorized to carry out inspections in those workplaces where the law expressly allows them to do so, public service departments thus being excluded under the terms of the Labour Code and Conventions Nos. 81 and 129 ratified by Guatemala. Certain exceptions allowed under the terms of section 2 of Decree No. 71-86 do not pertain to inspection functions in the true meaning of the term.
7. 692. According to the Government, it is clear from all this that the instructions which gave rise to the dispute do not in any sense constitute an arbitrary suspension of the assistance given by labour inspectors in cases brought by state employees, nor is it the purpose of those instructions to establish a legal standard unfavourable to members of public sector unions in Guatemala on the basis of a judgement given by the Legal Adviser of the Ministry of Labour, as the complainants maintain. Nor is there any violation of law, since it is obvious that the circulars which have been challenged do not purport to be sources of law. The principle of the pre-eminence of the Constitution is not violated, as has been claimed, and Circulars Nos. 454-98 and 3-1998-09-23 do not violate Convention No. 87.
8. 693. In order to show that Circular No. 454-98 has not affected, diminished or infringed the statutory rights of state employees, and that it does not restrict freedom of association and fully complies with Convention No. 87, the Government attaches a number of recent documents, as follows: (a) rulings of the Ministry of Labour officially certifying collective accords on conditions negotiated between public sector trade union organizations and state departments; (b) rulings given by the General Directorate of Labour recognizing the legal personality of public sector unions; and (c) judgements of the General Inspectorate of Labour informing state authorities of draft collective accords presented by trade union organizations.
9. 694. Lastly, as regards the alleged disinformation and the supposed "uncertainty" in which the unions were kept until February 1999, which is said to have made it impossible to use the remedies available under domestic law, the Government states that this is totally false. Circular No. 454-98 had been issued only recently when the Minister's Office granted the meeting sought by the public sector unions, including members of FESEBS, and explained in detail the purpose of the instructions. Since they were clearly not in agreement, they were invited to present considered arguments to demonstrate that in purely legal terms the instructions contained in the circulars were inconsistent, on the understanding that those instructions would be suspended if that were shown to be the case. The Minister's Office reminded them that they could have made use of the ordinary and extraordinary legal remedies already available. Regrettably, the public sector union officials who applied to the Ministry of Labour did so in a spirit of open confrontation and confined their contribution at subsequent meetings to verbal attacks on ministry officials and advisers.

C. The Committee's conclusions

1. 695. The Committee notes that in the present case the complainants: (1) object to the contents of a circular dated 21 September 1998 according to which the Labour Inspectorate can no longer intervene in matters relating to the public sector, which violates Article 3 of Convention No. 87; (2) allege that they were not informed of the circular in September 1998 and therefore could not appeal against it; and (3) consider that a circular cannot be a source of law and therefore request that the circular of 21 September 1998 be revoked.
2. 696. The Committee notes the Government's statements to the effect: (1) that under the terms of the Constitution and legislation in force, the exercise of individual rights of public servants (relating to recruitment, selection, appointments, assignment of posts, transfers, suspensions, redundancies and dismissals) is governed by the Civil Service Act and comes under the jurisdiction of the National Civil Service Board, to which public servants may present claims and complaints; (2) that the exercise of collective rights (right of association, recognition and registration of trade union bodies, irremovability of union officials, etc.) comes under the jurisdiction of the General Directorate of Labour and the General Inspectorate of Labour (the Government supplies a copy of the rulings given by those bodies on issues relating to collective rights of public servants); and (3) that the purpose of the circular is to clarify the legal position with regard to these issues, ensure compliance with legislation and prevent intervention by the Labour Inspectorate in areas beyond its competence. In the Committee's view, the fact that a body distinct from the Labour Inspectorate deals with the supervision and implementation of legal standards relating to individual rights of public servants does not in itself restrict or hinder the exercise of trade union rights. A problem could arise if in practice the delimitation between individual and collective rights - which is not always easy to establish - was not sufficiently clear, or if the National Civil Service Board did not provide adequate guarantees of impartiality or could not deal efficiently with complaints of violations of individual rights which also affect the exercise of trade union rights (for example, in the case of dismissal of a public servant because of his or her trade union membership or activities). However, these questions have not been the object of allegations by the complainants. The Committee therefore considers that it is not appropriate to pursue the examination of these allegations.
3. 697. As regards the allegation that the trade union organizations were informed of the circular of 21 September 1998 months after it was signed by the Minister of Labour, a fact which prevented any legal appeal owing to the expiry of the statutory time limit, the Committee notes the Government's statements to the effect that when the circular in question was still "recent" the authorities explained in detail to the trade union officials the purpose of the instructions set out in the circular and informed them that they could take legal action. The Committee thus regrets that there were no prior consultations with the trade unions in the public sector on the circular in question. In this regard, the Committee emphasizes that the circular marks a major change in the hitherto established practice of monitoring the application of laws and regulations relating to the individual rights of public servants, and accordingly draws the Government's attention to the importance which it attributes to the promotion of dialogue and consultations in matters of mutual interest between the public authorities and the most representative occupational organizations of the sector concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 926). The Committee has also emphasized the importance of prior consultation with employers' and workers' organizations before any legislation is enacted in the field of labour law (see Digest, op. cit., para. 930), and considers that these principles should be applied to the circulars. It requests the Government to take this principle duly into account in the future.