Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 386, Juin 2018

1. 315. The complaint is contained in communications submitted by the Union of Social Fund Workers (SINTRAFODES) on 3 February and 8 and 26 May 2016 and 24 March, 26 September, 23 October and 1 November 2017.
2. 316. The Government sent its reply in communications dated 3 January and 26 April 2017 and 2 February 2018.
3. 317. 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. The complainant’s allegations

1. 318. SINTRAFODES first alleges that all 80 of its members were dismissed as a direct result of the primary trade union’s establishment in October 2015. In that connection it states, in particular that: (i) on 9 October 2015, having found it difficult to obtain payment of their wages, several dozen employees of the Ministry of Social Development’s Social Development Fund (hereinafter the “public entity”), who were still working for this institution in the hope that their temporary contracts would be renewed, formed the trade union, SINTRAFODES; (ii) SINTRAFODES’ members immediately took steps to register their union with the Ministry of Labour and Social Security and it was registered on 22 December 2015; (iii) on 23 October 2015, the public entity denied the 80 SINTRAFODES’ members access to their workstations, as a result of which they filed a complaint with the labour inspectorate; and (iv) the labour inspectorate told them that they must remain at their posts in order to prevent the employer from reporting them for abandonment of post.
2. 319. The complainant indicates that on 6 November 2015, it brought legal proceedings requesting reinstatement of the 80 unionized workers who had been dismissed for their involvement in the establishment of SINTRAFODES and on 28 January 2016, the Eleventh Labour and Social Security Court ordered the reinstatement of only the 30 workers who had drafted the founding act of SINTRAFODES, refusing to reinstate the other 50 workers because their names merely appeared on the union’s membership list. The complainant states that it requested a review of this judgment and that, on 4 February 2016, the court decided not to grant this request, maintaining its decision to reinstate only the aforementioned 30 founding members. The complainant states, however, that the public entity prevented them from being reinstated and hired other people to replace the workers who had been dismissed.
3. 320. In its May 2016 communications, the complainant adds that: (i) it appealed the decision of 4 February 2016 before the First Chamber of the Labour and Social Security Appeals Court, requesting reinstatement of the remaining 50 members of SINTRAFODES; (ii) for its part, in order to delay implementation of the 30 reinstatements ordered by the lower court, the public entity filed numerous legal actions alleging various procedural errors; and (iii) on 9 May 2016, in response to the various aforementioned appeals, the Eleventh Labour and Social Security Court decided to amend the proceedings as from the beginning of the case, cancelling the reinstatement of the 30 founding members of the trade union and denying the request for reinstatement of the other 50 workers. The complainant expresses concern at this judgment in the belief that it was taken without considering the various legal briefs that it had submitted.
4. 321. In its communication of 26 September 2017, the complainant states that: (i) on 25 September 2017, the Eleventh Labour and Social Security Court issued another judgment on the merits of the case, an enforceable order that 29 founding members of the union be reinstated; (ii) in the presence of officials from the judiciary and a representative of the Human Rights Office of the Archdiocese of Guatemala in observer capacity, the public entity, through its Executive Director, Ms Brenda Mayen, approved and signed the reinstatement document; (iii) two hours after the departure of the officials from the judiciary and the observer, however, the public entity stated that the reinstatement would not take place and that it had once again appealed against it; and (iv) although this appeal was rejected and the enforceable reinstatement judgment remained final, the employer denied the workers access to their workstations, locking the doors of the building and using its security officers to intimidate them.
5. 322. Second, the complainant reports that: (i) in a decision issued on 25 February 2016, as a consequence of the Ministry of Social Development’s challenge to the union’s registration, the Ministry of Labour and Social Security ordered the cancellation of SINTRAFODES’ registration in the public record of trade unions; (ii) SINTRAFODES brought an administrative appeal for reversal of the cancellation order; this appeal is still pending; and (iii) on 13 February 2017, the Ministry of Labour and Social Security sent the public prosecution service a report stating that SINTRAFODES’ registration had been cancelled. The complainant alleges that the Ministry’s cancellation of SINTRAFODES’ registration constitutes a direct violation of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which establishes that workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority.
6. 323. Third, the complainant reports intimidation of and death threats against its officers and members. In communications dated 3 February and 8 May 2016, it indicates that on 19 January 2016, it lodged a complaint against the public institution with the public prosecution service, stating that its members were being constantly intimidated and threatened while freely exercising their right to organize and were receiving telephoned threats in an attempt to induce them to abandon the trade union process, to the point that some members of its Executive Committee had to change their telephone numbers in order to halt the harassment. It also maintains that it received no assistance from the criminal prosecution service, which merely heard and shelved the complaint.
7. 324. The complainant also states that: (i) on 20 January 2016, it was invited by telephone to meet with the Director of the Social Development Fund but, upon arrival, its members were intimidated by national civil police officers who were blocking the main door and told the trade unionists in a threatening manner that they could not go in; (ii) the union’s General Secretary, Ms Claudia Marina Linares Juárez, was intimidated by four armed strangers who demanded her cell phone and threatened to fire on her if she refused; and (iii) its members believe that they have been under surveillance since 2 February 2016 and have even been followed by unidentified vehicles upon leaving various institutions, such as the Ministry of Labour and the labour courts, leaving them in fear for their lives. In a communication of 23 October 2017, the complainant states that the threats and intimidation are still ongoing and that vehicles without registration plates are still involved in this anti-union persecution.
8. 325. Lastly, the complainant maintains that the public entity has no interest in participating in any round table discussion and that, as a consequence, the mediation process in the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, which began on 10 March 2017, was unsuccessful.

B. The Government’s reply

1. 326. In its various communications, the Government provides information on developments in the judicial proceedings concerning the appeal for reinstatement of the members of SINTRAFODES. In particular, it indicates that: (i) on 28 January 2016, the Eleventh Labour and Social Security Court ordered that the 30 founding members of the union be reinstated; (ii) on 9 May 2016, in response to an appeal brought by the public entity, alleging procedural errors, the Eleventh Court amended the proceedings as from the beginning of the case and ruled that the workers must first meet a number of requirements before it could issue a new judgment on the merits; (iii) on 28 August 2017, SINTRAFODES again appealed for reinstatement of the workers who had been dismissed; (iv) on 26 September 2017, the Eleventh Court again ordered that the union’s founding members be reinstated; (v) the public entity once again brought numerous procedural appeals; and (vi) on 24 January 2018, in response to these appeals, the court decided to amend the proceedings again on the grounds of procedural errors and required the lower court judge to issue another judgment on the appeals for reinstatement.
2. 327. The Government also states that the public entity has informed it that it never had an employment relationship with the 80 trade union members because their technical or professional services were provided through a contractual relationship established under budget item 029 and that, for this reason, its contractual relations with them could not have been terminated through the legal institution of dismissal, which by law is contingent on a prior employment relationship. The public entity has also stated that not only were these workers temporary contractors rather than public employees, but they had no current contracts as at 23 October 2015 since 78 of the 80 contracts had an expiration date of 31 July 2015 and the other two had expiration dates of 30 September 2015 and 20 October 2015, respectively.
3. 328. With regard to the registration of SINTRAFODES, the Government indicates that the Ministry of Social Development filed a request for cancellation of the administrative decision of 22 December 2015, which recognized the complainant’s legal personality with Guatemala’s Ministry of Labour and Social Security. The Government states that the primary argument made by the Ministry of Social Development, under the aegis of which the public entity operates, was that the trade union’s members were not employees and did not meet the criteria for public servants because they had professional and technical service contracts under budget item 029. The Government adds that on 25 February 2016, the Ministry of Labour and Social Security ordered that SINTRAFODES’ registration in the public record of trade unions be cancelled because: (i) the Ministry of Social Development had alleged, and provided evidence, that SINTRAFODES’ members were working under professional and technical service contracts and therefore could not be considered employees or public servants; (ii) the Ministry of Labour and Social Security was not empowered to recognize the employee status of the union’s members; only the labour courts could do so; (iii) the registration did not include a court ruling recognizing the employee status of SINTRAFODES’ members; (iv) for the foregoing reasons, the Ministry of Labour had acted in error by granting the complainant’s request for registration; and (v) the complainant’s members had been informed that they could establish a different type of union, of an occupational or activity-related nature and that they would be helped to initiate a new procedure with a view to their registration.
4. 329. With regard to the complaints that the General Secretary of SINTRAFODES brought before the public prosecution service, the Government states in its communication of 3 February 2017 that the public prosecution service, through the Special Investigation Unit for Crimes against Trade Unionists in the Human Rights Prosecution Service, required that applications for perimeter security measures be submitted for seven members of the complainant’s executive committee and advisory council, including its General Secretary. In its communication of 2 February 2018, the Government provides information on the handling of the five criminal complaints brought by the General Secretary of SINTRAFODES, indicating that: (i) two complaints (one for abuse of authority and the other for insubordination regarding the reinstatement of the union’s members) were rejected on the grounds that no crime or misdemeanour had been committed; and (ii) the other three complaints (concerning, respectively, abuse of authority, minor injuries and insubordination) are still under investigation because, in each case, the public prosecution service is awaiting information to be provided by the plaintiff.
5. 330. Lastly, the Government indicates that the employer did not attend the mediation sessions organized by the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining because, in its view, the complainant had no standing under domestic law.

C. The Committee’s conclusions

1. 331. The Committee observes that this case concerns the establishment of a trade union in a public entity and that, according to the complainant, this led in turn to: (i) the public entity’s dismissal of all of the trade union’s members; (ii) an administrative decision cancelling the trade union’s registration in the public record of trade unions; and (iii) intimidation of and death threats against the organization’s officers and members.
2. 332. With regard to the alleged anti-union dismissals, the Committee first takes note of the complainant’s allegation that: (i) on 23 October 2015, two weeks after the establishment of SINTRAFODES, the public entity denied entry to the 80 members of the union who were still working for it in the hope that their temporary contracts would be renewed; (ii) in an initial judgment issued on 28 January 2016, the Eleventh Labour and Social Security Court ordered reinstatement of the union’s 30 founding members; (iii) the court did not, however, consider the anti-union nature of the dismissal of the other 50 workers who were members of SINTRAFODES and this aspect of the judgment gave rise to additional judicial appeals that are still pending; (iii) in order to hinder reinstatement of the 30 founding members of the union, the public entity filed numerous appeals, alleging a number of procedural errors; (iv) in response to these appeals, the Eleventh Labour and Social Security Court was obliged to issue a second ruling and again ordered reinstatement of the founding members of the union in a judgment issued on 25 September 2017; and (iv) the public entity refused to comply with this order. The Committee also notes that, according to the public entity: (i) because SINTRAFODES’ members were working for the public entity under service contracts rather than employment contracts, their contractual relations could not be terminated through the legal institution of dismissal; and (ii) as at 23 October 2015, the temporary contracts of all of SINTRAFODES’ members had expired. Lastly, the Committee takes note of the Government’s statement that: (i) the two lower court judgments of 28 January 2016 and 25 September 2017, ordering reinstatement of the founding members of SINTRAFODES, gave rise to numerous procedural appeals, in response to which the court decided to amend the proceedings in both cases because, in its view, they had been procedurally flawed; and (ii) as a consequence of these events, the lower court judge was required to issue another judgment on the admissibility of the reinstatement appeals.
3. 333. In the light of the foregoing, the Committee first notes with concern that, two-and-a-half years after the events that prompted this complaint and following numerous procedural appeals, the lower court’s judgment in the appeal for reinstatement of the founding members of SINTRAFODES is still pending. On this point, the Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders who were dismissed, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1145]. The Committee therefore firmly hopes that the pending court judgments in the appeal for reinstatement of all members of SINTRAFODES will be issued promptly and requests the Government to keep it informed in that regard. Generally speaking, the Committee notes the repetitive nature of the cases concerning Guatemala that it has examined, in which it has been forced to note the slowness of legal proceedings regarding anti-union discrimination [see Cases Nos 2989 and 2869, 372nd Report, June 2014, paras 316 and 296, respectively; Case No. 2948, 382rd Report, June 2017, paras 375–378; Case No. 3062, 383nd Report, October–November 2017, para. 367]. Therefore, the Committee again urges the Government, in consultation with the social partners, to carry out a thorough review of the procedural rules of the relevant labour regulations in order to ensure that the judiciary provides appropriate and effective protection in cases of anti-union discrimination. The Committee requests the Government to keep it informed in that regard.
4. 334. With regard to the merits of the case brought before the courts, recalling that the non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98 [see Compilation, op. cit., para. 1093], the Committee trusts that if the courts establish that the public entity did not renew the contracts of the members of SINTRAFODES because they had joined the trade union, steps will be taken to ensure, as a priority resolution, that they are rehired immediately or, should this prove impossible, that steps are taken to ensure that they receive full and adequate compensation that constitutes a sufficiently dissuasive sanction that further anti-union acts will not occur in the future. The Committee requests the Government to keep it informed in that regard.
5. 335. With regard to the cancellation of SINTRAFODES’ registration through a Ministry of Labour and Social Security decision of 25 February 2016, the Committee takes note of the complainant’s allegation that this decision constitutes an administrative dissolution that violates Article 4 of Convention No. 87, which Guatemala has ratified, and that the administrative appeal of this decision is still pending. The Committee also takes note of the Government’s statement that SINTRAFODES’ registration was cancelled because: (i) the Ministry of Social Development, which had brought an administrative appeal against the decision to register the union, alleged and provided evidence that SINTRAFODES’ members had been hired on professional and technical service contracts under budget item 029 and therefore could not be considered employees or public servants; (ii) only the labour courts are empowered to recognize employee status and the union’s registration did not include a court ruling recognizing that SINTRAFODES’ members had this status; and (iii) when SINTRAFODES’ registration was cancelled, the complainant’s members were informed that they could establish a different type of union, of an occupational or activity-related nature.
6. 336. With regard to the cancellation of SINTRAFODES’ registration through a ruling of the labour administration rather than a court judgment, the Committee recalls that cancellation of a trade union’s registration should only be possible through judicial channels and that any possibility should be eliminated from the legislation of suspension or dissolution by administrative authority, or at the least it should provide that the administrative decision does not take effect until a reasonable time has been allowed for appeal and, in the case of appeal, until the judicial authority has ruled on the appeal made by the trade union organizations concerned [see Compilation, op. cit., paras 990 and 1007]. Noting that the cancellation of SINTRAFODES’ registration occurred four-and-a-half months after the union’s establishment and two months after its registration by the Ministry of Labour and Social Security itself, during which time the trade union had taken industrial action and brought legal proceedings in defence of its members’ interests, and observing that cancellation of the registration of a workers’ or employers’ organization not only produces the effects of a dissolution in the future but can also produce retroactive effects, the Committee stresses the importance of ensuring that the aforementioned principles are fully applied in the present case.
7. 337. With regard to the reason for cancelling SINTRAFODES’ registration, namely the fact that its members were working for the public entity under service contracts (budget item 029) rather than employment contracts and were therefore entitled to establish only an occupational or activity-related organization, the Committee recalls that, generally speaking, 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, op. cit., para. 327]. The Committee also recalls the repetitive nature of the cases concerning Guatemala that it has examined, in which it has had to observe that workers hired by the public administration under budget item 029 have been prevented from exercising the right to organize [see, for example, Case No. 2339, 340th Report, para. 872; Case No. 2768, 363rd Report, para. 641; Case No. 3042, 376th Report, para. 560]. The Committee draws particular attention to the fact that in one of these cases, it urged 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 requested it to immediately recognize the validity of the provision in a trade union’s constitution 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 [see Case No. 3042, 376th Report, para. 568]. In the light of the foregoing, the Committee considers that in the present case, all of the public entity’s workers, regardless of the type of contract under which they are working, should be able to enjoy the right to belong to a trade union whose purpose is to protect their interests. In that connection, the Committee firmly expects that the principles of freedom of association will be fully taken into account both in resolving SINTRAFODES’ appeals against the cancellation of its registration, and in the event that the trade union decides to submit a new request for registration. The Committee requests the Government to keep it informed in that regard and to take the necessary measures to ensure that the registration of a workers’ or employers’ organization can only be cancelled by a court judgment or, at a minimum, that administrative cancellation decisions can be appealed before the courts and, if appealed, cannot be applied until the court has issued a ruling on them.
8. 338. With regard to the alleged intimidation of and death threats against SINTRAFODES’ officers and members, the Committee first takes note of the Government’s statement that in June 2016, the public prosecution service requested the Ministry of the Interior to put in place perimeter security measures for seven SINTRAFODES’ officers, including its General Secretary. However, the Committee notes with concern that the Government has provided no information as to whether the security measures requested in 2016 were implemented and that, in communications dated 23 October 2017 and 8 May 2018, the complainant reports that the threats against and intimidation of SINTRAFODES’ officers are ongoing. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation, op. cit., para. 84]. In the light of the foregoing, the Committee urges the Government to ensure that all necessary measures have been taken to ensure the safety of the complainant’s officers and members and that an investigation is carried out without delay into the most recent allegations of threats and intimidation, including the alleged surveillance of certain leaders of SINTRAFODES by vehicles without registration plates. The Committee requests the Government to keep it informed in this regard.
9. 339. Second, the Committee notes that of the five criminal complaints brought by the General Secretary of SINTRAFODES in 2016 and 2017, two were rejected on the grounds that no crime or misdemeanour had been committed and the other three are still under investigation because, in each case, the public prosecution service is awaiting information to be provided by the plaintiff. The Committee trusts that once the information to be provided by the plaintiff has been received, these investigations will be completed without further delay and requests the Government to inform it in that regard.