Rapport définitif - Rapport No. 392, Octobre 2020

1. 634. The complaint is contained in two communications, dated 18 September 2017 and 30 October 2019, of the Tourism Workers’ Union (STIGT).
2. 635. The Government sent its observations in communications dated 28 and 29 May 2018, 24 September 2018, 12 December 2019, 31 January and 11 September 2020.
3. 636. 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. 637. In its communication of 18 September 2017, the complainant reports firstly the interference by the National Civil Service Authority (ONSEC) in negotiations initiated on 30 August 2016 regarding the collective agreement on working conditions signed by the Guatemalan Tourism Institute (henceforth the public tourism institute) and the STIGT for the period 2016–18. In this respect, the complainant alleges that after publishing the economic and financial analysis of the public tourism institute’s finance department and the opinion of the Technical Budget Directorate, it proceeded to negotiations directly between the administration of the institute and the STIGT regarding the draft collective agreement, and reached a final consensus on 3 November 2016. The complainant indicates that it subsequently requested ONSEC to issue an opinion in line with its area of competence (the non-violation of established salary scales and the modification of posts or functions) and that ONSEC issued opinion DTJL-01248 on 13 June 2017 wherein it requested the public tourism institute to amend 24 articles of the collective agreement.
2. 638. According to the complainant, ONSEC, in making these recommendations, abused, failed to fulfil and overstepped its functions, and contributed to significantly delaying the entry into force of the above agreement. The complainant also considers that the public tourism institute acts as a decentralized state entity, with its own legal personality to acquire rights and contract obligations, with its own assets, laws and regulations, as well as internal funding source that allows it to administer its own budget, and hence the competent authorities should use a different reasoning from that used for centralized institutions. In addition, it considers that the opinion of 13 June 2017 contravenes the principle of acquired and inalienable rights, as most of the clauses of the collective agreement in question simply revisit clauses of previous agreements.
3. 639. In its communication of 30 October 2019, the complainant reports, secondly, that the Ministry of Labour and Social Welfare (MTPS), through its technical and legal advisory board, interfered in and maliciously delayed the approval of a second collective agreement on working conditions, signed between the public tourism institute and the STIGT in 2019. In this respect, the complainant indicates that: (i) following the denunciation of the collective agreement on working conditions 2016-2018, and the subsequent negotiation that took place directly, the parties agreed on 25 September 2018 on a new draft agreement; (ii) both the economic and financial analysis of the public tourism institute’s finance department, as well as those of human resources and ONSEC expressed a favourable opinion with regard to this new agreement; (iii) on 29 July 2019, the agreement was sent to the MTPS for its approval, which requested the harmonization of 17 points, entailing the suppression of several acquired rights; and (iv) until 30 October 2019, the agreement was not approved.
4. 640. The complainant considers that the purpose of the labour administration’s intervention was to delay the negotiations and that it lacked legal justification. It also considers that the labour administration, in issuing this opinion, disregarded the appointing authority exercised by the general director of the public tourism institute, violated trade union freedom and leadership, disregarded the rights acquired through collective bargaining and threatened the signatories to the collective agreement with the possible commission of crimes.
5. 641. The complainant raises specific concerns with respect to the repeated interference in collective bargaining by the labour administration, a body responsible for protecting and promoting collective bargaining. It also highlights that in the negotiation of the two collective agreements in question (the first for 2016-2018 and the second for 2019-2021), the public tourism institute freely accepted the clauses and terms signed in the collective agreements, and indicates that, in accordance with freedom of association, the role of the labour administration should be limited to ensuring that the collective agreements fulfil the formal criteria and minimum standards. Further, it indicates that, in accordance with article 106 of the Constitution of Guatemala, the labour rights enshrined in the Constitution and other labour laws are inalienable for workers and may be superseded by collective agreements.

B. The Government’s reply

1. 642. In its communications dated 28 and 29 May 2018, the Government provides its comments on the first claim brought by the complainant regarding alleged acts of interference during the negotiation of the collective agreement on working conditions 2016–18. The Government explains that on 22 November 2017, a request was submitted to the MTPS for approval of the above agreement and that, on 6 December 2017, the technical and legal advisory board of the MTPS issued opinion No. 126-2017 in which it requested, prior to approval, the harmonization of the following provisions: (i) section 14 of the agreement on the grounds that it would grant trade union immunity greater than that provided for in section 223(d) of the Labour Code; (ii) sections 17 and 18 of the agreement, on the grounds that these provisions would be contrary to sections 61(n) and (ñ) (which, according to the Government, provide that paid union leave is limited to members of the executive board and should not exceed six days per month); and (iii) section 40 of the agreement on the allocation of vacant posts or positions on the grounds that, under article 154 of the Constitution, State entities’ freedom of contract cannot be restricted, since this is a function of the public administration and therefore non-delegable. The Government indicates that, without full compliance with opinion No. 126-2017, the above agreement was approved on 8 February 2018 (administrative decision No. 45-2018) and that, as of September 2018, it was in force, with reservations to sections 17 and 40. In this regard, the Government states that section 5 of government agreement No. 221-94 (Regulations for the processes of negotiation, approval and denunciation of collective agreements on working conditions of a given enterprise or production centre) provides that “in the event that the documents do not meet the legal requirements or that the agreement violates legal provisions, a period of ten days shall be set for the negotiating parties and signatories to ensure compliance with the law”. The Government also states that section 52 of the Labour Code empowers the MTPS, through its technical and legal advisory board, to evaluate collective agreements and, in the event of violations of the relevant legal provisions, to order the signatories to the agreement to harmonize the clauses and, failing that, to approve the agreement, with reservations to the incompatible clauses.
2. 643. With regard to the alleged interference by the MTPS in the negotiation of the collective agreement signed in 2019 between the STIGT and the public tourism institute, the Government indicates in its communication of 12 December 2019 that the MTPS on 31 October 2019 (decision No. 715-2019) approved this collective agreement with the reservations to sections 17 (leave for union secretaries and union support) and 40 (allocation of vacant fixed-term posts and positions). The Government indicates that after the above decision had been issued, the complainant filed an administrative labour appeal to revoke the reservations.
3. 644. Lastly, in its communications dated 31 January and 11 September 2020, the Government provides information on the administrative labour appeal filed by the complainant, which was dismissed by the MTPS on 20 January 2020 (decision No. 35-2020). In its decision, the MTPS considered: (i) with regard to the reservation to section 17 of the collective agreement, while it is true that article 106 of the Constitution establishes inalienable rights that may be superseded by individual and collective contracting, that article also establishes that such rights must be superseded in the manner set out by law, and therefore the MTPS cannot approve without applying reservations to articles that are contrary to the law; and (ii) with regard to the reservation to section 40 of the agreement, this provision establishes direct interference in the administration by the public tourism institute as, under this provision, the union may prepare a competition, post an announcement, and review the procedure for the allocation of vacant posts or positions, thereby restricting the State’s freedom of contract, in breach of the legislation in force (sections 42(4), 49 and 50 of the Civil Service Act, Decree No. 1748 of the Congress of the Republic).

C. The Committee’s conclusions

1. 645. The Committee notes that, in the present case, the complainant alleges obstruction and interference by the Government in the negotiation of the two collective agreements on working conditions, signed between the STIGT and the public tourism institute.
2. 646. The Committee notes that, in its first communication, the complainant alleges acts of interference by the National Civil Service Authority, which had requested the amendment and abrogation of several provisions of the collective agreement (2016–18) of the public tourism institute before expressing a favourable opinion on its approval, thereby unduly delaying the entry into force of the agreement. Secondly, the complainant denounces the interference and tardiness of the MTPS, specifically of its technical and legal advisory board, which also requested the amendment and abrogation of certain provisions of the collective agreement (2019) before proceeding to its approval. The Committee notes the complainant’s comments that: (i) the public tourism institute is a decentralized state entity, with its own legal personality, assets, laws and regulations, and which has an internal funding source that allows it to administer its own budget; (ii) the role of the technical and legal advisory board of the MTPS is to ensure that the collective agreements fulfil the formal criteria and minimum standards; (iii) although the Labour Code establishes minimum standards, these may be superseded through collective bargaining (article 106 of the Constitution of Guatemala); (iv) on both occasions, the employer together with the trade union freely agreed on the terms of the collective agreements; (v) on both occasions, the public tourism institute’s finance department authorized the commitments adopted through the collective agreements, ensuring the availability of the funds; and (vi) the reservations made to the collective agreements are contrary to the principle of acquired rights.
3. 647. The Committee notes the Government’s indication, with regard to the alleged acts of interference in the negotiation of the first collective agreement, that: (i) on 22 November 2017 the union submitted its request for approval; (ii) on 6 December 2017, the technical and legal advisory board of the MTPS requested the harmonization of certain provisions of the agreement as they were incompatible with the Labour Code; and (iii) the agreement was approved on 8 February 2018 (administrative decision No. 45-2018), with reservations to sections 17 (leave for union secretaries and union support) and 40 (allocation of vacant fixed-term posts and positions), as they were contrary to the Labour Code and the Constitution of Guatemala. With regard to the second collective agreement, the Government indicates that: (i) this was approved on 31 October 2019, once again with reservations to sections 17 and 40 (decision No. 715-2019) for the reasons mentioned above; (ii) on 25 November 2019, the trade union filed a labour administrative appeal to revoke the reservations; and (iii) on 20 January 2020, the MTPS decided to dismiss that appeal (decision No. 35-2020).
4. 648. With regard to the allegation of the delay in approving the collective agreements signed by the STIGT, the Committee notes that: (i) even though the parties reached a final consensus on the first collective agreement on 3 November 2016, it was approved on 8 February 2018; (ii) despite the fact that the parties reached a consensus on the second collective agreement on 25 September 2018, it was approved on 31 October 2019; and (iii) on both occasions, after signing the agreements and before seeking their approval with the MTPS, the parties were required to request the opinion and approval of various governmental authorities, including the Technical Budget Directorate of the Ministry of Public Finance and ONSEC, entailing further questions about the scope of competence of the institute . The Committee recalls that, in a previous case of Guatemala, (see Case No. 3094, 384th Report, March 2018, para. 343), it requested the Government to take, in consultation with the trade unions concerned, the necessary measures to ensure that collective bargaining procedures in the public sector followed clear guidelines which met both the requirements of financial sustainability and the principle of bargaining in good faith. The Committee also notes that, within the framework of the follow-up by the Governing Body to its decision to support the national tripartite agreement of Guatemala of November 2017, aimed at implementing the road map, the Government reported the submission, at the end of 2018, to the social partners of a draft government agreement designed to establish and expedite the formal requirements for approval of collective agreements in the public administration. Taking due note of the above draft government agreement, the Committee urges the Government to, in consultation with the social partners, take all necessary measures to expedite considerably the procedures relating to the approval of collective agreements in the public sector with a view to promoting free and voluntary collective bargaining.
5. 649. With regard to the specific allegations concerning acts of interference by the administrative authority in the content of the collective agreements signed by the STIGT, the Committee notes that, on both occasions, the labour administration issued a decision prior to the approval of the collective agreements requesting the harmonization of several provisions of the collective agreement, and that, subsequently, ruling that the decisions had not been fully complied with, it approved the collective agreements on working conditions with reservations to sections 17 (leave for union secretaries and union support) and 40 (allocation of vacant fixed-term posts and positions).
6. 650. With regard to the exclusion by the MTPS of section 17 of the agreement concluded in 2019, which sought to grant paid full-time union leave to the general secretary and part-time leave to the secretaries for disputes and technical affairs, the Committee notes, on the one hand, that the documentation provided by the complainant shows that the purpose of this clause was to ensure proper union representation at the 14 union headquarters in the country. The Committee notes on the other hand that, according to the complainant, the clause was covered by section 61(ñ)(7) of the Labour Code, which provides for the possibility of granting paid leave in all cases specifically set out in collective agreements on working conditions. The Committee also notes the Government’s indication that: (i) this provision of the agreement is incompatible with article 61(ñ)(6) of the Labour Code, which establishes the obligation for the employer to grant paid trade union leave, provided that it is limited to the members of the Executive Board and does not exceed six days per month; and (ii) where this limit is not respected, there is no guarantee that workers will fulfil their obligation to work and provide services, which is a basic requirement of an employment relationship. In this respect, while it notes the divergent interpretations of section 61 of the Labour Code by the Government and the complainant, the Committee recalls that in previous cases it considered that the requirement that trade union leaders shall continue to carry out their employment during their term of office prevents the existence of full-time officers, and that this provision may be highly detrimental to the interests of trade unions, in particular those whose size or geographical extent require the contribution of a considerable amount of time by the officers. Such a provision impedes the free functioning of trade unions and is not in conformity with the requirements of Article 3 of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 614]. The Committee also notes that Guatemala has ratified Convention No. 154, which applies to both the private and public sector and articles 2(c) and 5(c) of which set out that collective bargaining should be progressively extended to regulating relations between employers or their organizations and one or a group of workers’ organizations. In the light of the foregoing, and without prejudice to the proper examination by the competent authorities of the availability of public funds and the imperative to ensure the effective operation of the service prior to the signing of the corresponding collective agreements, the Committee requests the Government to refrain from censuring the clauses of the collective agreements of the public sector which provide for more favourable union leaves than the minimum established in the Labour Code.
7. 651. With regard to the exclusion by the MTPS of section 40 of the collective agreement concluded in 2019, defining the allocation of vacant fixed-term posts or positions, the Committee notes that, according to the complainant’s statement in its appeal for revocation, the purpose of this clause would not be to grant powers of intervention or decision to the union in allocating job posts. The complainant considers that the provision would grant the union supervisory powers to ensure that the procedures for allocating vacant posts or positions were carried out in accordance with the legislation in force. The Committee further notes that, according to the Government, under article 154 of the Constitution, and sections 42(4), 49 and 50 of the Civil Service Act, posts or positions may only be allocated by the public tourism institute, and that therefore the trade union must not participate, intervene or even supervise in that regard.
8. 652. The Committee emphasizes that, with regard to allegations concerning the refusal to bargain collectively on certain matters in the public sector, it has recalled the view of the Fact Finding and Conciliation Commission on Freedom of Association that “’there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation’. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust” [see Compilation, para. 1300].
9. 653. In this respect, the Committee duly notes the Government’s indication that, under the Guatemalan Constitution and legislation, decisions regarding contracting in the public sector are a non-delegable prerogative of the public authorities. Regarding the possibility that, through collective bargaining, mechanisms to attribute to public sector workers’ organizations an observer role in the contracting processes, the Committee considers that this subject could be a matter for consultation between the Government and the trade unions in the context of the preparation of the aforementioned governmental agreement on collective bargaining in the public sector.