Rapport définitif - Rapport No. 326, Novembre 2001

1. 302. The complaint is contained in a communication from the General Trade Union of Employees of the Ministry of Labour and Social Welfare (SIGEMITRAB) dated 30 March 2001. The SIGEMITRAB sent new allegations in a communication dated 29 June 2001. The Government sent its observations in communications dated 3 and 31 May, and 3 September 2001.
2. 303. 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 complainant’s allegations

1. 304. In its communications of 30 March and 29 June 2001, the General Trade Union of Employees of the Ministry of Labour and Social Welfare (SIGEMITRAB) alleges that in the year 2000 the Ministry authorities refused to negotiate a new collective agreement on terms and conditions of employment, which led to a collective dispute of an economic and social nature being referred to the First Labour Court. As a result, and since trade union officials or members were involved, the Ministry authorities took the following measures:
   • – they changed the conditions of work or transferred to other departments (according to the complainant, this had already occurred and been mentioned in a complaint to the Committee in 1995) the following trade union officials and members holding the post of labour inspector: Manuel de Jesús Luna Mendoza (member of the consultative council), Víctor Manuel Dávila Rivera (disputes secretary), María Cristina Chay Medrano, Juan Ortiz Camey, Pedro Armando Ortiz Quintanilla (organization and propaganda secretary), Mizraid Otoniel Velásquez, Pedro Boror López, Angelina Sánchez Vela, Gilma Nora Hicho de León and Mario Rodolfo Morales Solares;
   • – they dismissed over 50 workers without going through the statutory procedures or obtaining the authorization of the competent judge. According to the complainant, petitions for reinstatement were filed with the judiciary, which ordered their immediate reinstatement. However, the complainant states that the Ministry authorities appealed against the judicial decision, thus holding up the reinstatement order to the detriment of the workers. It adds that the Second Labour Court of Appeal upheld four of the reinstatement orders that had been issued with respect to Priscila Esperanza Vargas Ponce de Portillo, Edgar Alfredo Mancilla Cuellar, Carlos Enrique López Merida and Hilario Vicente;
   • – they initiated plenary proceedings for the termination of contracts (based on time-barred acts which are not certain to have occurred and do not constitute grounds for dismissal) against Juan Pablo Ochoa Reyes, Víctor Manuel Dávila Rivera and Néstor Estuardo de León Mazariegos, members of the SIGEMITRAB executive committee, and members Paco Bernabé Vera Lopez and Nérida Ixiomara Antonio.
2. 305. In addition, the complainant alleges that a second trade union was established and promoted by the authorities in the Ministry of Labour, called the General Trade Union of Workers of the Ministry of Labour and Social Welfare (SITRAMITRAPS). According to the complainant, the Ministry of Labour authorities encouraged members to withdraw by offering them wage increases and authorized the SITRAMITRAPS to use official vehicles, while denying this possibility to the SIGEMITRAB.

B. The Government’s reply

1. 306. In its communication dated 2 May and 3 September 2001, with regard to the allegations concerning transfers of labour inspectors to other departments (in particular to the conciliation department) the Government states that it is the rule for inspectors to be transferred from one department to another, firstly in application of the principle of ius variandi which allows any employer to carry out staff movements; secondly, this does not affect them in any way since they maintain their status of inspectors and their benefits and rights remain unchanged, but it also has the advantage that inspectors have experience in handling cases and have been trained as mediators and conciliators for the settlement of disputes. Against this background and in the context of the increase in disputes which occurred in 1994, the Ministry of Labour issued Ministerial Agreement No. 85-94 of 29 November 1994 regulating the modernization and organization of the General Labour Inspectorate, which organized the staff, clearly defining the three departments; section 17 of the Agreement establishes the functions of social work and mediation, and provides that these are to be carried out by the general labour inspector. Based on these provisions, the department was strengthened by transferring inspectors who had been trained in conciliation.
2. 307. As regards the establishment of a new trade union (SITRAMITRAPS), the Government states that it is inadmissible to say that this was aimed at destroying the SIGEMITRAB; according to the Government, what is happening is that the complainant does not wish to lose its hegemony, but the establishment of a new trade union is the result of its bad behaviour, which prompted a group of workers to seek to form an organization that would genuinely defend their rights and would not be limited to the Labour Inspectorate. The Government emphasizes that it has not interfered in the establishment and functioning of the SITRAMITRAPS; what it is doing is responding to its requests for hearings and to handle the labour problems of its members, which is not the attitude taken by the SIGEMITRAB, which never brings its alleged problems directly to the higher authorities, and this is basically due to the fact that when they do present issues to the higher authorities it is with the purpose of seeking privileges which the Government is in no position to grant, as they are illegal and immoral. The Government states that the SITRAMITRAPS trade union was established when the Minister of Labour was attending the 88th Session of the International Labour Conference and the Ministry authorities do not have anything to do with its organization and functioning; it is not the Government’s fault if the workers decide to found two or more organizations. As regards withdrawals from membership of the SIGEMITRAB, these take place at the workers’ request, because the SIGEMITRAB refuses to recognize the right to freedom of association which means the freedom to join, remain in or withdraw from membership of a trade union; this is not understood by the members of the SIGEMITRAB, who attempt to force people to remain members and disregard repeated requests to withdraw from membership, violating the right to freedom of association.
3. 308. As regards the allegations concerning dismissals, the Government states that the Ministry has had to terminate some employment relationships and that those who have sought reinstatement in the courts have not succeeded, since, according to the rules of procedure and legal provisions, the judge of the court of first instance had to immediately order reinstatement, but in the second instance, having examined each case in depth, the jurisdictional body has already revoked the reinstatement orders in three cases. In this respect, it should be borne in mind that Decree No. 35-96 amending the Act respecting trade union organization and strikes of employees of the State allows authorizations of dismissal for just cause even if cases where a court summons has been served, and clearly indicates that these cases do not constitute reprisals by the employer. The Government adds that the Ministry of Labour brought plenary suits against three of the members of the executive committee for gross misconduct at work: Mr. Néstor Estuardo de León was charged with 11 instances of misconduct and grounds for dismissal; proceedings were filed against Mr. Juan Pablo Ochoa based on nine grounds for dismissal and against Mr. Víctor Dávila on one serious ground.
4. 309. The Government states that when the current administration took up its activities the Ministry was faced with the following situations: (1) many workers were not occupying their proper posts, without any transfers having been carried out in accordance with the law, i.e. the workers held the posts of their choice, and therefore it was decided that this situation would be regularized and workers were prohibited from choosing where they wished to work. Despite the illegality, the responsible chief was given the opportunity of taking responsibility for the situation and submitting an opinion on the need for a worker to continue occupying a post other than that which he or she was required to hold; (2) hours of attendance were not being observed and workers were evading checkpoints at the entrance to the building by entering through the basement. This practice was prohibited and workers were required to adhere to the work schedule; (3) staff have a 40-minute lunch break but were taking two to three hours to eat lunch and when the trade union leaders were asked to give their support to ensure that the legal framework was observed, they replied that they used this time because it was an acquired right; (4) some Ministry workers enter and leave the building during working hours and refuse to carry identification in order to avoid being identified; (5) the SIGEMITRAB had reserved a certain number of rooms in recreation centres administered by the Ministry and allocated them as they saw fit to trade union members and personal friends, violating the right of all public employees who contribute one day’s wages per year to maintain these centres. This practice was eliminated as immoral and illegal; (6) the SIGEMITRAB wished to be entitled to a parking space for the trade union’s vehicle, but as it turned out the trade union does not have a vehicle and they wanted to use the space for personal vehicles; and (7) the SIGEMITRAB wishes to have a vehicle permanently at its disposal to use for private purposes, disregarding the fact that the Ministry would be reducing the already limited resources at its disposal to attend to the needs of workers in general.
5. 310. The Government states that all of the above compelled it to adopt measures based on the law, but taking a firm stand, so that the Ministry of Labour could discharge its obligation of attending to the workers and employers in general who seek assistance from the Ministry. All of this has meant that it has had to carry out staff rotations or transfers in an effort to energize the work of the inspectorate, which was not to SIGEMITRAB’s liking, as it objected to any change that might mean greater efficiency and control over work in order to counteract the generally unfavourable opinion workers have of the General Labour Inspectorate. The Government emphasizes that there is no discrimination against the SIGEMITRAB, but neither can there be any privileges, and that unfortunately the officials of this trade union confuse rights with abuses and have neglected their obligations as workers.
6. 311. As regards the allegation concerning the refusal of the Ministry authorities to negotiate a new collective agreement on terms and conditions of employment, the Government states that direct negotiation and conciliation did not take place owing to the intransigence of SIGEMITRAB delegates and their poor knowledge of the meaning of dialogue and consultation, since they expect their demands to be accepted without discussion; this is evidenced by the statement made by the General Secretary of the National Trade Union Federation of State Employees of Guatemala, who on 23 November, in point 5.1, stated that the union was withdrawing from bargaining because the first five points had not been accepted by the bargaining committee. The Government adds that on the basis of this the SIGEMITRAB officials filed a collective action of an economic and social nature to have the collective agreement discussed through the labour and social welfare courts, and that the complainant conceals the fact that section 4 of Legislative Decree No. 35-96 provides that negotiations at the conciliation and direct bargaining stage may be personally attended by the Minister, but that proceedings in court had to be handled by the Office of the Procurator-General of the Nation, which is the legal institution handling legal negotiations of the State and hence when SIGEMITRAB referred the dispute to the labour courts it removed the case from the jurisdiction of the Minister, who is not empowered to act in this instance as he is prevented from doing so by law and would be usurping the functions of the Procurator-General’s Office.
7. 312. The Government states that the SIGEMITRAB does not indicate that the collective dispute was referred to the courts on 14 June 2000, when the Minister of Labour was attending the 88th Session of the International Labour Conference, as was noted in the record of proceedings, and therefore they did not speak to the responsible official of the Ministry and point out their alleged problems. The Government adds that SIGEMITRAB received and illegally concealed a notification sent by the labour court to the Ministry, which is an illegal act and a criminal offence because it constitutes an attempt to impede the right of defence, and as a result it was not possible to contest a resolution in time, which meant that other objections had to be raised, delaying the collective proceedings. Owing to this anomaly, the authorities have brought criminal charges and initiated labour proceedings for the authorization of termination of the contracts of employment of the persons responsible. According to the Government, the SIGEMITRAB is careful not to mention that it intends to maintain the summons served on the Ministry of Labour in order to prevent it from applying the disciplinary measures necessary to combat corruption. Lastly, the Government states that in this context and in an effort to provide a better service to the workers requesting the assistance of the Ministry of Labour, workers were dismissed with just cause, which means that the worker has violated his or her labour obligations and is guilty of misconduct at work which warrants direct and justified dismissal.
8. 313. In its communication of 31 May 2001, the Government states that on 18 May 2001 a complaint was lodged with the Attorney-General’s Office of the Republic against Mr. Juan Pablo Ochoa Reyes, for stealing documents.

C. The Committee’s conclusions

1. 314. The Committee observes that in this case the complainant alleges: (1) refusal by the Ministry of Labour authorities to negotiate a new collective agreement on terms and conditions of employment; (2) changes in conditions of employment, transfers, dismissal and initiation of proceedings to terminate contracts of trade union officials and members of the SIGEMITRAB, with the result that an economic and social collective dispute was referred to the judiciary following refusal to negotiate the abovementioned collective agreement; and (3) the establishment of a new trade union promoted by the authorities in the Ministry of Labour called the SITRAMITRAPS, and the consequent encouragement of SIGEMITRAB members to withdraw from membership, and the award of benefits to the new trade union.
2. 315. As regards the alleged refusal of the Ministry of Labour authorities to negotiate a new collective agreement on terms and conditions of employment, the Committee notes that the Government states that: (i) bargaining did not take place owing to the intransigence of the SIGEMITRAB delegates, who expected their demands to be accepted without discussion; (ii) as a result of this intransigence the SIGEMITRAB delegates withdrew from bargaining because the first five points of their list of demands were not accepted by the bargaining committee and instituted collective proceedings of an economic and social nature so that the collective agreement would be discussed through the labour and social welfare courts; (iii) the collective dispute was referred to the courts while the Minister of Labour was attending the International Labour Conference, without contacting the responsible officials of the Ministry; and (iv) the SIGEMITRAB received and illegally concealed a notification sent by the labour court to the Ministry of Labour, which constitutes an illegal act and a criminal offence; the Government states that as a result of this act, criminal charges have been brought and labour proceedings initiated for the authorization of termination of the contracts of employment of those responsible.
3. 316. In this respect, the Committee recalls that it has pointed out on a number of occasions that “it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 815]. The Committee observes that according to the versions presented and decisions taken by the complainant (to refer to the courts in the context of an economic and social dispute) and the Government (bringing criminal charges and initiating dismissal proceedings) in the present case the abovementioned principle has not been fully applied. In these circumstances, the Committee requests the Government and the complainant to endeavour to negotiate in good faith the new collective agreement with a view to regulating terms and conditions of employment. Moreover, the Committee requests that, in order to maintain harmonious labour relations between the Government and the SIGEMITRAB in this process of collective bargaining, consideration be given to withdrawing the criminal charges and dismissal proceedings which the Government stated had been initiated against the persons responsible for having concealed a judicial notification sent to the Ministry of Labour.
4. 317. As regards the allegation concerning changes in conditions of employment, transfers, dismissals and the initiation of proceedings for the termination of contracts of the SIGEMITRAB officials and members named by the complainant, as a result of which an economic and social collective dispute was referred to the judiciary following refusal to negotiate the abovementioned collective agreement, the Committee notes that the Government states that: with respect to transfers (i) it is the rule for inspectors to be transferred from one department to another, firstly in application of the principle of ius variandi which allows any employer to carry out staff movements, and secondly this does not affect them in any way since they maintain their status of inspectors and their benefits and rights remain unchanged; (ii) when the current administration took over the activities of the Ministry of Labour many workers were not occupying their proper posts and discharging their duties, without any transfers having been carried out in accordance with the law; the workers occupied the posts of their choice, and hence it was decided that this situation would be regularized and workers were prohibited from choosing where they wished to work; and (iii) given this situation, the authorities were obliged to carry out rotations or transfers in an effort to energize the inspectorate’s work; with respect to dismissals (i) the Ministry has had to terminate certain employment relationships; (ii) certain workers have sought reinstatement before the court; (iii) in the first instance, in accordance with the established procedure, reinstatement was ordered, but in the second instance, the jurisdictional court has already revoked it in three cases; with respect to proceedings for the termination of contracts (dismissals) the Ministry of Labour brought plenary actions against three of the members of the executive committee of SIGEMITRAB for gross misconduct at work.
5. 318. In this respect, taking into account the versions of the complainant and the Government, the Committee can neither affirm nor deny that the measures in question are anti-union in nature. In any case, the Committee cannot but observe that the existing climate between the Ministry authorities and the SIGEMITRAB is by no means conducive to the development of harmonious labour relations. In these circumstances, the Committee requests the Government: (1) in consultation with the SIGEMITRAB trade union, to take steps to suspend the transfers or changes in duties of the trade union officials and members where this prevents them from carrying out their trade union activities; (2) to consider the possibility of reinstating the trade union officials and members who were dismissed after presenting a new collective agreement on terms and conditions of employment, except in cases of serious professional misconduct for which there should be impartial appeal proceedings; (3) to ensure compliance with the decision of the court of second instance to reinstate Priscila Esperanza Vargas Ponce de Portillo, Edgar Alfredo Mancilla Cuellar, Carlos Enrique López Merida and Hilario Vicente; and (4) in consultation with the SIGEMITRAB, to reconsider the situation of the trade union officials against whom proceedings have been initiated for the termination of their contracts.
6. 319. As regards the allegation concerning the establishment of a new trade union promoted by the authorities in the Ministry of Labour, called SITRAMITRAPS, and the consequent encouragement of SIGEMITRAB members to withdraw from membership (offering wage increases) and the grant of benefits to the new trade union (specifically, the use of vehicles), the Committee notes that the Government states that: (i) it has not interfered in the establishment and functioning of the SITRAMITRAPS; (ii) concerning withdrawals of membership from the SIGEMITRAB, these have taken place at the workers’ request; and (iii) as regards the use of vehicles, the SIGEMITRAB wishes to have a vehicle at its permanent disposal in order to use it for private purposes, disregarding the fact that the Ministry would have to reduce the already limited resources at its disposal to attend to the needs of workers in general. In this respect, the Committee requests the Government to ensure that no favouritism is shown to either of the existing trade unions in the Ministry of Labour.