Rapport définitif - Rapport No. 388, Mars 2019

1. 340. The complaint is contained in a communication from the National Federation of Public Employee Unions (FENASSEP) dated 1 March 2016.
2. 341. The Government sent its reply in communications dated 21 February, 20 April and 21 December 2017, and 29 January 2019.
3. 342. 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. 343. In its communication dated 1 March 2016, the complainant organization reports that both it and the Union of the Ministry of Economic Affairs (SITRAME) were subjected to acts of intimidation and reprisals on the part of the Ministry of Economic Affairs and the then chief administrator at that Ministry, Mr Joel Arriaza Ríos.
2. 344. The complainant organization denounces, firstly, acts of intimidation and reprisals against FENASSEP and SITRAME leaders and members by the authorities of the Ministry of Economic Affairs and its then chief administrator. In this regard, the complainant federation and SITRAME requested the Ministry of Economic Affairs and the Human Resources Directorate on several occasions to immediately revoke the appointment of the chief administrator because there were “legal impediments” to him holding this post since he reportedly filed a complaint through ordinary channels against his previous employer, the Telecommunications Supervisory Authority, while he was working for the Ministry of Economic Affairs. Furthermore, SITRAME made allegations to the Comptroller-General’s Office of misuse of resources by the Ministry of Economic Affairs during procurement procedures, and reported irregularities in the appointment of officials, payment of salaries and also acts of corruption. In addition, the complainant refers to two collective disputes initiated by SITRAME on account of the expiry of the collective agreement and non-compliance with it. The complainant explains that all the previous actions stemmed from the duty of trade union organizations to monitor the stability of employment and finances in institutions where unions affiliated to the federation exist, making use of freedom of expression pursuant to section 35(2) of the Political Constitution, which provides that no crime or offence attaches to publications containing denunciations, criticisms or accusations against public officials or employees for acts committed in the course of their duties.
3. 345. The complainant indicates that further to the above-mentioned series of complaints from the union, the Ministry of Economic Affairs began, through its chief administrator, to obstruct the activities of SITRAME and to make various demands, including the return of vehicles assigned to the union’s executive committee under section 67(b) of the collective agreement on conditions of work signed by SITRAME and the Ministry of Economic Affairs.
4. 346. The complainant organization adds that the chief administrator sent internal messages on several occasions prohibiting staff from entering the Ministry of Economic Affairs before 8 a.m. and from remaining in the building after 4 p.m., despite being aware that union meetings were held before 8 a.m. and that union leaders finished their union activities after 4 p.m.
5. 347. Moreover, the complainant alleges that the general secretary of both organizations, Mr Danilo Aguilar García, was the victim of reprisals, of a government conspiracy and of criminal prosecution. In this regard, it indicates that: (i) in early 2016, on the instructions of the Deputy Minister of Security at the Ministry of Home Affairs, his personal protection was withdrawn; (ii) subsequently, the then chief administrator at the Ministry of Economic Affairs deprived him of the vehicle assigned to him under the collective agreement in force; (iii) on 29 January 2016, without knowing the reasons why, Mr Aguilar García was taken into custody by the National Civil Police for misappropriation and other offences but, according to the complainant, the latter charges were so implausible that the judge dismissed them as baseless; (iv) on 3 February 2016, Mr Aguilar García made his first statement to the judge and was apprised of the charges against him and of the source of the legal action, namely the then chief administrator at the Ministry of Economic Affairs; (v) on 1 February 2016, after an extraordinary general assembly, SITRAME held a peaceful protest on the premises of the Ministry of Economic Affairs; and (vi) criminal complaints for reprisals were filed against the Ministry of Economic Affairs and the chief administrator.
6. 348. Lastly, the complainant indicates that SITRAME and the trade union leaders continue to be subjected to discrimination, harassment and anti-union intimidation and requests that the Committee guarantee the right to organize freely, in order to protect the above-mentioned trade union organizations from acts of reprisal, that Mr Danilo Aguilar García be released and that the criminal prosecution to which he has been subjected be stopped.

B. The Government’s reply

1. 349. The Government sent its reply in communications dated 21 February, 20 April and 21 December 2017, and 29 January 2019. The Government states that its task was made more difficult by the fact that the complainants did not make precise allegations or provide specific information on the complaints or indicate the numbers of the cases to which they refer. The Government indicates that reference is made to multiple complaints and disputes which are unrelated to the matters within the Committee’s competence and requests the complainants to submit more detailed complaints in future in order to facilitate the Government’s work.
2. 350. With regard to the general allegations of reprisals against SITRAME leaders and members, the Government indicates that: (i) SITRAME brought a number of collective disputes of a socio-economic nature before the labour courts (Nos 01173-2013-06637; 01173 2014 08092; and 01173-2015-00791); (ii) without any prior assembly or instruction from the union hierarchy, the general secretary, Mr Danilo Aguilar García, gave himself the authority to file a complaint for reprisals in the Eighth Labour and Social Welfare Court in the context of socio-economic collective dispute No. 01173-2013-06637, and on 22 August 2014 the court dismissed the plaintiff’s claims (threats to trade union leaders, lack of recognition of the right to organize, interference, acts of anti-union discrimination, reprisals, intended administrative dissolution or suspension of the union, restrictions on collective bargaining) on the grounds that the plaintiff failed to provide any supporting evidence; (iii) the Economic, Social and Cultural Rights Unit at the Human Rights Ombudsperson’s Office launched an investigation into alleged restrictions on freedom of association, and this unit issued a final decision on 18 November 2016 which stated that, further to analysis of the complaint and the measures taken, there were insufficient grounds for declaring that the matters reported by the union’s administrative committee (including: restrictions on the use of vehicles assigned for the performance of union duties; interference; use of union premises; public demonstrations; lack of legal representation; and restrictions on collective bargaining) had involved human rights violations; (iv) a mediation process was launched in the Committee for the Settlement of Disputes before the ILO relating to Freedom of Association and Collective Bargaining for supposed interference and reprisals against the SITRAME leaders but neither party showed any interest in participating: neither SITRAME nor the Ministry of Economic Affairs attended the mediation meetings to which they were invited in March and May 2017.
3. 351. As regards the specific allegations of reprisals against the SITRAME general secretary, in relation to his being deprived of the 2005 Toyota Corolla, the vehicle which had been assigned for his union duties, and also the criminal prosecution to which he was reportedly subjected, the Government indicates that: (i) the above-mentioned union leader did not use the vehicle solely for his union activities but also for personal purposes; (ii) on 22 August 2014, the Eighth Labour and Social Welfare Court concluded, with regard to the complaint of reprisals filed by the union’s executive committee, that the requisitioning of the vehicles used by executive committee members had been carried out in full conformity with Ministerial Decision No. 438, Ministry of Economic Affairs regulations governing the use and monitoring of vehicles, Ministry of Economic Affairs regulations governing the use and monitoring of fuel, and the Public Officials and Employees Integrity Act; that the union had not provided any evidence that the vehicles had been requested for the purposes of trade union activities or that the employer had denied the use of these vehicles; and the court therefore imposed on the SITRAME general secretary a deadline of three days in which to return the vehicle, a deadline which was not met; (iii) the Fifth Criminal Court for Drug Trafficking Offences and Environmental Crimes sentenced Mr Aguilar García to three years’ imprisonment, with an injunction barring him from the vicinity of the Ministry of Economic Affairs; (iv) the aforementioned ruling was referred to the Office of the Appeals Prosecutor and is the subject of an appeal; (v) Mr Aguilar García filed a complaint (No. R 0101-15955-2016) before the Labour Inspectorate against the Ministry of Economic Affairs, requesting his reinstatement and salary payments which were outstanding on account of his involvement in criminal proceedings and being held in custody; (vi) the Labour Inspectorate requested the legal opinion of the Attorney-General’s Office, which stated that there were no grounds for meeting the plaintiff’s requests and, since the administrative remedies were thus exhausted, the parties were at liberty to assert their rights through judicial channels.

C. The Committee’s conclusions

1. 352. The Committee notes that in the present case the complainant organization alleges that leaders and members of the FENASSEP and SITRAME trade union organizations were subjected to acts of intimidation and reprisals on the part of the Ministry of Economic Affairs and that Mr Danilo Aguilar García, the general secretary of both organizations, was subjected to criminal prosecution on account of his trade union activities.
2. 353. With regard to the alleged prosecution process and reprisals on the part of the Ministry of Economic Affairs against SITRAME and FENASSEP leaders and members, the Committee notes that the complainant alleges, in its communication of 1 March 2016, that: (i) after a series of complaints against the Ministry of Economic Affairs and its chief administrator for misuse of resources, FENASSEP and SITRAME were subjected to reprisals; (ii) from the time the chief administrator took up his duties, he obstructed the work of the trade unions and sent internal messages prohibiting staff from entering the building before 8 a.m. and from remaining in the building after 4 p.m., despite being fully aware that the trade unions often held meetings before or after normal working hours; (iii) in violation of the collective agreement between the parties, the trade union leaders were deprived of the vehicles which had been put at their disposal; (iv) both trade union organizations filed criminal complaints for reprisals and intimidation on the part of the Ministry of Economic Affairs, its chief administrator and his advisers; and (v) the acts of intimidation and reprisals are said to have continued.
3. 354. Furthermore, the Committee notes the Government’s indication with regard to these allegations that: (i) reference is made in the present case to complaints and disputes which are unrelated to freedom of association and are imprecise; (ii) the general secretary of the union filed a complaint for reprisals before the Eighth Labour and Social Welfare Court, which dismissed the plaintiff’s allegations on the grounds that the union had not provided any supporting evidence; (iii) the Economic, Social and Cultural Rights Unit at the Human Rights Ombudsperson’s Office launched an investigation into alleged restrictions on freedom of association and decided that there were insufficient grounds for declaring that violations had occurred; and (iv) the Committee for the Settlement of Disputes before the ILO relating to Freedom of Association launched a mediation process but neither party showed any interest in participating.
4. 355. In the light of the foregoing, the Committee observes that although the complainant describes in detail the FENASSEP and SITRAME initiatives that supposedly antagonized the authorities of the Ministry of Economic Affairs, its allegations are brief in terms of specific details of the reported reprisals against FENASSEP and SITRAME members and leaders and in terms of the supporting evidence supplied. The Committee notes that both the labour courts and the Human Rights Ombudsperson’s Office dismissed the actions brought by the trade unions on the grounds that they lacked the necessary supporting evidence.
5. 356. As regards the allegations that the then chief administrator at the Ministry of Economic Affairs restricted the times when staff could enter and leave the building, thereby obstructing the work of the trade union leaders and members, the Committee, while recalling that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paragraph 1591], observes that the complainant has not provided any evidence in this regard.
6. 357. With regard to the allegations concerning the supposed withdrawal of vehicles placed at the disposal of SITRAME, the Committee observes that the ruling of 22 August 2014 of the Eighth Labour and Social Welfare Court, communicated by the Government, reveals that: (i) the Ministry of Economic Affairs provided three vehicles for members of the SITRAME executive committee for trade union purposes, in accordance with the terms of the collective agreement in force at the Ministry; (ii) under the terms of section 67(b) of the collective agreement, the use of vehicles is governed by the Ministry’s transport regulations; (iii) under these regulations, the interested parties must submit a form requesting the vehicle concerned, which will be provided subject to availability; (iv) by official letters of 3 April and 2 May 2014, the administrator at the Ministry of Economic Affairs requested the members of the executive committee to return the vehicles; and (v) SITRAME did not provide any evidence that it had requested the vehicles in order to carry out trade union tasks or that the employer had refused the use thereof for trade union purposes. In the light of this information, the Committee notes that the withdrawal of the vehicles placed at the disposal of SITRAME appears to have complied with the regulatory procedures referred to in the Ministry’s collective agreement. In view of the above, the Committee considers that the allegations of reprisals and anti-union acts against FENASSEP and SITRAME leaders and members in general do not warrant a more detailed examination.
7. 358. As regards the alleged criminal prosecution of the FENASSEP and SITRAME general secretary on anti-union grounds, the Committee notes that the complainant specifically reports that: (i) Mr Danilo Aguilar García was deprived of his personal protection; (ii) he was requested to return the vehicle assigned to him in accordance with the collective agreement in force; (iii) on 29 January 2016, the above-mentioned union leader was taken into custody for misappropriation and on other charges which the judge dismissed as being implausible; and (iv) at the time he was taken into custody, the union leader was unaware of the reasons for his detention and it was not until 3 February 2016, at the time of making his first court statement, that he found out the charge against him and which person was the source of the complaint against him.
8. 359. Furthermore, the Committee notes the Government’s statement that: (i) as referred to in the examination of the first allegation in this case, the Ministry of Economic Affairs, in accordance with its collective agreement, assigned vehicles to Mr Danilo Aguilar García and two other SITRAME leaders to be used solely in their trade union activities but they allegedly used the vehicles for their own personal purposes; (ii) on 22 August 2014, the Eighth Labour and Social Welfare Court considered that the requisitioning of the vehicles by the Ministry of Economic Affairs had occurred in conformity with the decision and regulations in force and set a deadline of three days for the return of the vehicles; (iii) unlike the other two members of the SITRAME executive committee, Mr Aguilar García did not return the vehicle, thereby failing to comply with the ruling of the Eighth Labour and Social Welfare Court; (iv) because of this non-compliance, the Fifth Criminal Court for Drug Trafficking Offences and Environmental Crimes sentenced Mr Aguilar García to three years’ imprisonment for misappropriation, pursuant to section 445bis of the Penal Code, which establishes penalties of three to five years’ imprisonment for misappropriation; (v) the judgment was referred to the Office of the Appeals Prosecutor and is the subject of an appeal; (vi) the union leader filed a complaint with the Labour Inspectorate requesting his reinstatement and salary payments which were outstanding on account of his involvement in criminal proceedings; and (vii) in accordance with the legal opinion of the Attorney-General’s Office requested by the Labour Inspectorate, the administrative remedies were deemed to have been exhausted and the interested parties were at liberty to assert their rights through judicial channels.
9. 360. Recalling that there should be no unauthorized use of official vehicles in the context of the exercise of freedom of association [see Compilation, op. cit., paragraph 1602], especially when this results from non-compliance with a judicial order, the Committee observes that, even though the information brought to its attention indicate the existence of conflict between SITRAME and the public institution, no particulars have been supplied showing that the prosecution that resulted in the union leader’s court conviction was anti-union in nature. Observing that the appeal court decision relating to the conviction of Mr Aguilar García is still pending, the Committee hopes that this court will issue its ruling in the very near future. Lastly, the Committee notes with regret that neither of the parties attended the mediation meeting convened by the Committee for the Settlement of Disputes before the ILO relating to Freedom of Association and hopes that in the future, with a view to fully restoring harmony in labour relations, recourse will be had to the social dialogue mechanisms existing in the country, especially the recently established National Tripartite Committee on Labour Relations and Freedom of Association, rather than to judicial proceedings. In view of the foregoing, the Committee considers that this case does not call for further examination.