Report in which the committee requests to be kept informed of development - Report No 403, June 2023

1. 229. The complaint is contained in communications dated 7 March, 24 May, 7 and 21 June, 11, 22 and 26 July and 10 August 2019 presented by the Workers’ Union of Frito-Lay Company Ltd of Guatemala (SINTRAFL-GUA) and the Workers’ Union of GFLG Services Company Ltd (SITRA GFLG), supported by the Confederation of Trade Union Unity of Guatemala (CUSG) on 21 June 2019.
2. 230. The Government of Guatemala sent its observations on the allegations in communications dated 6, 9, 10 and 23 September, 7 October and 18 and 23 December 2019, 14 January 2020, 15 April 2021, 16 December 2022, and 25 and 27 April 2023.
3. 231. 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).

The complainants’ allegations

1. 232. SINTRAFL-GUA, established on 18 August 2016, and SITRA GFLG, established on 1 December 2016, claim that they represent sales workers at the enterprises Frito Lay Company Ltd of Guatemala (hereinafter: enterprise 1) and GFLG Services Company Ltd (hereinafter: enterprise 2), which are part of the PepsiCo corporation (hereinafter: the corporate group or the enterprises) dedicated to the manufacture and distribution of food, and that at the time the complaint was presented these unions had 110 and 340 members, respectively.
2. 233. SINTRAFL-GUA claims that it presented its proposed collective agreement to the General Labour Inspectorate on 31 March 2017. This trade union alleges that after the 30-day period established by section 51 of the Labour Code for direct negotiations had elapsed, and having received no response from the employer, it brought a judicial action concerning an economic and social collective dispute on 26 July 2017. The economic and social collective dispute was assigned to the Fourteenth Labour and Social Security Court (case file No. 01179-2017-8560). Similarly, SITRA GFLG claims that on 17 October 2017 it presented its proposed collective agreement to the General Labour Inspectorate, which sent a notification regarding the proposed agreement to the union and the corresponding enterprise on 21 November 2017. This union alleges that up to the date when the complaint was presented to the Committee (7 March 2019) it had not received any response from the employer regarding its proposed collective agreement. SITRA GFLG brought two economic and social collective disputes before the labour courts on 15 March and 20 May 2019 (case files Nos 01173-2019-02619 and 01173-2019-04484, respectively).
3. 234. The complainant organizations allege that they had recourse jointly to the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, in which two meetings were held with the employers (25 October and 10 November 2017). The complainants indicate that at the second meeting they presented a proposal to the enterprises to negotiate a single collective agreement, but no response was received.
4. 235. The complainants allege specifically that the enterprises: (i) have refused to settle the dispute through collective bargaining, arguing low sales and lack of profits; (ii) have made various investments, including the purchase of vehicles, which, according to the complainants, is an indication that the enterprises have made profits; and (iii) are unwilling to engage in dialogue or collective bargaining.
5. 236. The complainants claim that the enterprises have offered benefits to unionized workers in exchange for quitting union membership (for example, transferring them to a route with better sales in order to earn higher wages), and that they have prepared a form to facilitate withdrawal from union membership. The complainants also allege that: (i) the enterprises threaten persons who do not give up their union membership with reprisals in the form of changes to their conditions of work (such as reductions in customer numbers in their work routes); (ii) the enterprises have pressurized unionized workers with verbal attempts at dismissal and have asked them to sign a document terminating their employment contracts by mutual consent and if the workers refuse to sign they are suspended from work for an indefinite period; and (iii) the enterprises are seeking to reduce the number of union members so that the unions cannot fulfil the legal requirements for engaging in collective bargaining. The complainants also claim that newly recruited workers are given better sales routes and other privileges unlike union members, to whom the enterprises deny access to social security facilities or who they oblige to make up for days of sick leave with rest days, public holidays and Sundays to cover the deficit in sales and working time.
6. 237. The complainants allege that the enterprises seek to intimidate union members with various actions such as administrative suspensions. SITRA GFLG alleges that it brought a judicial action on 12 September 2018 (case file No. 01215-2018-02178) relating to the suspension of 18 unionized workers (some of whom have been suspended for more than two years). SITRA GFLG indicates that a hearing was scheduled for 30 October 2019, that is to say 13 months after the judicial action was brought. Furthermore, the complainants allege the following specific cases relating to anti-union suspensions:
   • (a) Mr Werner Salomón Barrios García, SINTRAFL-GUA leader and advisory board member, who was suspended from work for eight days without pay (on two occasions in June and July 2019) without the due process indicated in the internal company regulations being followed, including the right to a hearing and to representation by the leaders of his union.
   • (b) Mr Yonny Fernando de la Cruz, SINTRAFL-GUA leader and advisory board member, who was the subject of an administrative disciplinary procedure by enterprise 1 without his presence, entailing financial losses, and resulting in his suspension from work in July 2019.
   • (c) Mr Alejandro Beltrán and Mr Julio Audelino Morales Pineda, SITRA GFLG members, who were suspended for supposed administrative offences but were actually the victims of a repressive measure.
7. 238. The complainants allege that the enterprises have effected anti-union dismissals in order to break up the unions. Specifically, SINTRAFL-GUA alleges the dismissal without judicial authorization of the unionized worker Ms Candy Guadalupe Castillo Ramírez on 1 April 2019. In this regard, the union brought a judicial action before the Twelfth Labour and Social Security Court (case file No. 1173-2019-4102), relating to the refusal of enterprise 1 to comply with the reinstatement order. Furthermore, the union alleges that it brought a judicial action (case file No. 01173-2016-07134) for non-compliance by enterprise 1 with a judicial reinstatement order relating to the unionized worker Mr Maycon Willy Joel Montufar Chacón. SITRA GFLG, for its part, states that it brought a judicial action (case file No. 01173-2019-03048) for non-compliance by enterprise 2 with a judicial reinstatement order (10 May 2019) relating to the unionized worker Mr Flavio Mauricio García Chacaj. Lastly, the complainants allege that Mr Josué David Teletor Molina, a SITRA GFLG member, was the victim of extortion by persons unrelated to enterprise 2 in June 2019 in the course of his work, and that he was subsequently dismissed by enterprise 2 on 13 July 2019. Consequently, SITRA GFLG went with labour inspectors to the premises of the corporate group, which denied access to the authorities and to the union leaders. The complainants indicate that in all cases they have represented their members with a view to settling the disputes through dialogue, but that the enterprises have not shown any willingness to settle, even failing to attend hearings in the presence of the labour authorities.
8. 239. The complainants further allege that one of the repressive measures adopted by the corporate group was the decision to withdraw the agents who provided security services on board trucks involved in the distribution of products (April 2018). In this regard, the complainants allege that as a result of this measure many workers, including union members and leaders, have been the victims of assaults, abductions, armed violence, extortion and, in one case, murder.
9. 240. The complainants state that on 23 February 2018, at a meeting in Geneva, Switzerland, the corporate group recognized the complainant organizations and another union as the representatives of the production, sales and distribution workers at the enterprises. The complainants further indicated that at this meeting the international management of the corporate group had confirmed that no changes would be made to security arrangements until the concerns raised by the unions representing the workers were addressed through dialogue.
10. 241. The complainants further allege that the enterprises denied access to their premises for the union leaders in order to prevent the unionized workers from being represented, especially in relation to acts of violence and insecurity in the performance of their work. This was in the wake of the withdrawal, by order of the enterprises, of the security guards who accompanied the workers on their sales routes. Specifically, the complainants refer to three occasions, two of them with labour inspectors present, involving the following acts: (i) 26 June 2019: an attack against two workers and another attack in which the trade unionist Mr Mario Joel Ruiz Sosa was murdered in the performance of his work; (ii) 2 July 2019: other violent actions against workers and trade unionists; and (iii) 5 July 2019: the enterprises threatened union leaders who were requesting access to the enterprise premises that they would conduct breathalyser tests on them. The complainants allege that on repeated occasions they requested the enterprises to restore the security arrangements, including in June and July 2019, through various means, but the enterprises refused.
11. 242. Lastly, SITRA GFLG alleges that: (i) on 27 July 2018 it brought a judicial action before the courts (case file No. 01214-2018-01548) in relation to worker safety issues; and (ii) the first hearing scheduled for 26 August 2019, that is to say, more than a year after the judicial action was brought, was postponed until 14 October 2019 and assigned to another court (Fifteenth Labour and Social Security Court).

B. The Government’s reply

1. 243. In its communication of 23 September 2019, the Government forwarded the information provided by the legal representative of enterprises 1 and 2, who indicated that the membership of the complainant organizations does not exceed 25 per cent of the total number of workers of each of the enterprises considered individually, and so the parties are not obliged to engage in collective bargaining in accordance with section 51 of the Labour Code. The information sent by the enterprises indicates that enterprise 1, as at 6 September 2019, had 654 workers, of whom 96 were union members (14.6 per cent), and that enterprise 2, at the same date, had 1,382 workers, of whom 283 were union members (20.4 per cent). The Government also states that the two enterprises add that, in case file No. 1173-2017-8560, SINTRAFL-GUA did not have the requisite number of workers to trigger the obligation for enterprise 1 to engage in collective bargaining. Enterprise 1, in the information forwarded by the Government, attaches the ruling of 9 January 2018 of the Fourteenth Labour and Social Security Court, which concluded the case and was upheld by the ruling of 23 May 2018 of the Third Chamber of the Labour and Social Security Court of Appeal, the grounds of which ruling are indicated as follows: (i) the inadmissibility of a collective agreement for non-compliance with the terms of section 51 of the Labour Code; (ii) the lack of legitimacy of the persons who requested the processing of the case file; and (iii) the inadmissibility of the dispute owing to the existence of a collective agreement in force.
2. 244. In its communication of 9 September 2019, the Government indicates that the present complaint was brought before the National Tripartite Committee on Labour Relations and Freedom of Association at its meeting of 5 July 2019. The Government indicates that at this meeting the workers’ representatives stated that: (i) in the corporate group there are three unions (one for the manufacturing plant and two for sales); (ii) since the emergence of the unions there have been reprisals against the workers, including the removal of security measures, resulting in attacks while doing their work, and that in one of those attacks a worker died; and (iii) since 2018, the workers have been asking for security measures to be restored, and for a dialogue to be established between workers and employers with a view to ending the existing collective dispute. The Government also indicates that a dialogue round table was set up to address the case.
3. 245. The Government indicates that on 29 August 2019, at the mediation session of 10 November 2017 of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining (which was replaced by the Subcommittee in matters relating to the case), the corporate group agreed with the Unionized Workers’ Coordination Unit in the corporate group (comprising SINTRAFL-GUA, SITRA GFLG and the Union of a related entity in the corporate group (SITRAFL)) “to negotiate a new agreement in consensus with the three unions …” (record No. 30-2017). In the same communication, the Government indicates that it followed up on the agreements adopted but that the enterprise did not respond to the communications sent.
4. 246. In its communication of 7 October 2019, the Government indicates that on 26 July 2017 SINTRAFL-GUA brought an action relating to an economic and social collective dispute against enterprise 1 before the Fourteenth Labour and Social Security Court of Guatemala. The Government forwarded the information provided by the above-mentioned Court indicating that, by a ruling of 9 January 2018, it had established the following: (i) the inadmissibility of a collective agreement for non-compliance with the terms of section 51 of the Labour Code; (ii) the lack of legitimacy of the persons who had requested the processing of the case file; and (iii) the inadmissibility of the dispute owing to the existence of a collective agreement in force. The Court therefore withdrew the summons against enterprise 1 relating to the collective dispute, and the Third Chamber of the Labour and Social Security Court of Appeal, by a ruling of 23 May 2018, upheld the above-mentioned ruling.
5. 247. The Government also indicates that SITRA GFLG brought two actions relating to economic and social collective disputes against enterprise 2. The first was concluded since the union did not fulfil the requirements set by the judicial body within the indicated time frame, and did not appeal against the ruling, whereupon the proceeding was terminated. The Government states that, on account of the refusal of enterprise 2 to engage in collective bargaining, the same union brought an action on 20 May 2019 relating to a second collective dispute (case file No. 00173-2019-00484). In this proceeding, the Government states that on 23 May 2019, the competent court requested SITRA GFLG, enterprise 2 and other authorities to provide various types of information, and that, as of 16 December 2022, the proceeding was still under way.
6. 248. Lastly, in its communication of 25 April 2023, the Government indicates that on 2 December 2021 a collective agreement on conditions of work negotiated and signed by a related entity in the corporate group and SITRAFL was approved. In the above-mentioned communication the Government affirms that all the judicial actions initiated with regard to the approval of a collective agreement on conditions of work have been dealt with, and that it has received the corresponding ruling, which has been notified to the interested parties.
7. 249. In a communication of 23 September 2019, the Government forwarded the information from the enterprises on the complainants’ allegations concerning interference in trade union activities, indicating that: (i) there are no judicial or administrative files in which such incidents are denounced; (ii) the union statements are false, since the complaint is too imprecise with respect to the date, place and workers affected to enable an investigation of the reported incidents; and (iii) the enterprises have received complaints from many workers who have decided to quit union membership, and when the workers have made their requests to leave the union, the enterprises have refused to receive such requests since this would infringe freedom of association.
8. 250. In the same communication, with regard to the allegations concerning unjustified dismissals, the Government forwarded the information from the enterprises, which state that, having been the subject of a summons for four years, they require judicial authorization to be able to dismiss workers. The enterprises indicate that the complaint only provides details of the cases of three unionized workers, namely Mr Maycon Montufar Chacón, Mr Flavio Mauricio García and Ms Candy Guadalupe Castillo Ramírez, and so the reported cases constitute a very small number on which to base an allegation of an anti-union violation, and indicate that these workers do not have the status of union representatives. As regards the application of disciplinary suspensions, the enterprises affirm that these have been applied in cases of work-related offences, and so the measures do not constitute arbitrary acts. As regards the allegations concerning acts of anti-union discrimination, including that the enterprises do not assign better routes to trade unionists and that the latter are intimidated or are denied access to social security facilities, the enterprises assert that the complainants’ allegations do not refer to specific cases.
9. 251. In its communication of 9 September 2019, the Government indicates that, through the General Labour Inspectorate at the Ministry of Labour and Social Security (hereinafter: Ministry of Labour), the receipt of complaints made against enterprises 1 and 2 was verified. The Government states that, according to data from the General Labour Inspectorate, a total of 16 complaints between 2015 and 2019 relate to the case and refer to the allegations of anti-union acts such as coercion, threats, intimidation and unjustified dismissals, including the following: (i) one complaint concerning anti-union actions such as coercion and reprisals was settled (terminated); (ii) eight complaints concerning violations of freedom of association (for alleged illegal deductions from wages in order to be able to take union leave, violations of Convention No. 87, reprisals against unionized workers, dismissals in the context of a summons for the enterprise, suspensions without pay and a disciplinary procedure imposed on a unionized worker) were being processed in accordance with the law; (iii) five complaints concerning reprisals against unionized workers, suspensions without pay and reprisals for belonging to a union, violations of freedom of association, and verification of the employment situation of a unionized worker were examined and resulted in the imposition of sanctions on the enterprises; (iv) one complaint was terminated because the complainant did not pursue it; and (v) one complaint concerning the dismissal of unionized workers was terminated because the veracity of the complaint could not be established.
10. 252. In its communications of 15 April 2021 and 27 April 2023, the Government forwarded information provided by the General Labour Inspectorate on the allegations of administrative suspensions against trade union members and leaders, indicating that: (i) in the case of Mr Werner Salomón Barrios García, a SINTRAFL-GUA leader and advisory board member, the labour inspector established non-compliance on the part of the enterprise and a sanction ruling was issued; (ii) in the case of Mr Yonny Fernando de la Cruz, a leader and advisory board member of the same union, an agreement was reached between the parties and so the case file will be closed; (iii) in the case of Mr Alejandro Beltrán, a SITRA GFLG member, the corresponding sanction was issued on account of the failure of the enterprise to attend the hearing of 8 July 2019 and the enterprise lodged an appeal against the sanction, which is pending; and (iv) in the case of Mr Julio Audelino Morales Pineda, a SITRA GFLG member, a sanction was imposed on enterprise 2, which paid the sanction, but a judicial proceeding in which the enterprise requested authorization to dismiss this unionized worker remains pending.
11. 253. As regards the allegations of dismissals of unionized workers, the Government states in its communication of 15 April 2021 that, in the case of Mr Josué David Teletor Molina, in administrative proceeding No. R-0101-07763-2019, the labour inspector established non-compliance with the legal requirements which the labour inspector had imposed on enterprise 2 and the sanction ruling was due to be notified. The Government indicates that protection measures were granted to Mr Teletor Molina, who was a victim of the crime of extortion. The Government also forwarded the information provided by the General Labour Inspectorate on the alleged unjustified dismissal of Ms Candy Guadalupe Castillo Ramírez (case file No. R-0101-03700-2019), the enterprise being the subject of a summons in an economic and social collective dispute. The Government indicates that the enterprise did not comply with the reinstatement order in favour of Ms Castillo Ramírez. In its communication of 7 October 2019, the Government indicates that enterprise 1 appealed against the reinstatement order for Ms Castillo Ramírez and that a decision on the appeal was pending. In its communication of 16 December 2022, the Government indicates that a judicial proceeding is under way in the First Chamber of the Labour and Social Security Court of Appeal (No. 01173-2019-04102), and in its communication of 27 April 2023, it indicates that a related administrative proceeding is pending.
12. 254. In its communications of 7 October 2019, 16 December 2022 and 25 April 2023, with regard to the judicial action (case file No. 01173-2019-03048) brought by SITRA GFLG before the Fourteenth Labour and Social Security Court (in relation to the alleged failure of the enterprise to comply with a reinstatement order regarding the unionized worker Mr Flavio Mauricio García Chacaj), the Government indicates that: (i) on 2 March 2020, a period of three days was given to the plaintiff to coordinate his reinstatement and as of 2 September 2022 he had still not appeared in person; and (ii) as at 2 September 2022, an amparo ruling (for the protection of constitutional rights) was pending and the first-instance court had not received any definitive ruling in this regard.
13. 255. In its communications of 6 September and 7 October 2019, regarding the status of the proceeding relating to failure by the enterprise to comply with a judicial reinstatement order regarding the unionized worker Mr Maycon Willy Joel Montufar Chacón, the Government states that the aforementioned worker was reinstated on 27 February 2019.
14. 256. In its communications of 7 October 2019 and 25 April 2023, regarding the judicial action that SITRA GFLG brought in September 2018 relating to the suspension of 18 unionized workers, the Government indicates that it sent a request to the Eleventh Labour and Social Security Court, which stated that: (i) the action was brought on 11 September 2018 and there are currently six plaintiffs since the others withdrew from the action; (ii) the corresponding hearing was held on 23 June 2022; (iii) a ruling is pending; and (iv) none of the workers has been reinstated, since this is a standard labour proceeding.
15. 257. As regards the allegation concerning the ban on union leaders from entering the premises of the enterprises, the Government forwarded the information provided by the General Labour Inspectorate, indicating that: (i) an administrative proceeding was opened; (ii) an inspection was conducted on the enterprise premises and nobody appeared on behalf of the enterprise, and so the authority recorded the denial of entry and found that the enterprises had committed an offence in obstructing the inspection work; (iii) a hearing was notified, which was not attended by the enterprises, and the labour inspector imposed the relevant sanction in accordance with the law; and (iv) the enterprises alleged a violation of the right of defence and this point is pending resolution.
16. 258. In its communication of 9 September 2019, the Government indicates that the General Labour Inspectorate informed it that in the administrative proceeding relating to reprisals against trade unionists and affiliated workers and the verification of safety and health measures in accordance with the law, a dialogue round table was held, in which the complainants, representatives of the enterprises and Ministry of Labour officials participated. The Government adds that a hearing was subsequently held in which the enterprises stated that they would not reinstate the security guards and asked the trade unions to refrain from getting involved in the process and to shelve the legal action. The Government indicates that, given these circumstances, the workers considered the conditions for dialogue to have been exhausted and reaffirmed that “the union is required to represent all affiliated and non-affiliated workers”.
17. 259. As regards the judicial action brought by SITRA GFLG before the Fifteenth Labour and Social Security Court relating to the enterprise’s decision to withdraw the agents who provided security on trucks involved in the distribution of products, the Government forwarded the information from the enterprise in a communication of 23 September 2019, indicating that: (i) the dispute has nothing to do with a violation of freedom of association; rather, it is a discussion on occupational safety and health obligations; (ii) the State should guarantee public safety in accordance with article 2 of the Political Constitution of the Republic of Guatemala; (iii) the workers do not claim in their legal action that the change in the security arrangements is a reprisal against unionized staff, as they have stated to the Committee; and (iv) the parties are in a process of amicable dialogue with a view to finding a solution to the dispute with the intervention of the Ministry of Labour and the Ministry of the Interior. In this regard, the Government indicates that: (i) the action was submitted to the Auxiliary Services Centre of the Justice Administration on 25 July 2018; (ii) after the first hearing had been rescheduled several times, it took place on 23 August 2021; (iii) on 20 June 2022, the competent court issued a ruling against SITRA GFLG; and (iv) the aforementioned union lodged an appeal against this ruling, which was decided in the union’s favour on 12 August 2022, but its dispatch to the respective court chamber is pending. The Government adds in its communications that as regards the acts of violence against workers and trade unionists at the enterprises, it has provided various protection measures in favour of the workers.
18. 260. As regards the murder of Mr Mario Joel Ruiz Sosa, the Government in its communications of 18 December 2019, 16 December 2022 and 25 April 2023 forwarded the information provided by the Public Prosecutor’s Office indicating that: (i) the Municipal Prosecutor’s Office of Villa Nueva, Guatemala, Prosecution Team 1 for Crimes against Life, handled the case file (No. MP015-2019-7076); (ii) some 40 investigative procedures were conducted; (iii) on 23 March 2023, the investigation was shelved since it had not been possible to identify the perpetrators; (iv) the shelving of the investigation does not imply the definitive termination of the case (no res judicata); and (v) the investigation will have to be resumed if new elements emerge that enable the individual perpetrators to be identified, as long as criminal proceedings are not time-barred. The Government indicates that it will keep the Committee informed and that it is reporting on this same case in the context of Case No. 2609, since the allegation was submitted by the complainants in 2021, and that it is also keeping the Governing Body informed in this regard in the context of the road map under Convention No. 87 and as part of the actions undertaken by the Government and the National Tripartite Committee on Labour Relations and Freedom of Association. The Government asks the Committee to examine the case of Mr Ruiz Sosa in the context of Case No. 2609 and not as part of the present case.

C. The Committee’s conclusions

1. 261. The Committee observes that the present case refers to allegations of violations of freedom of association and of the right to collective bargaining, as from the establishment in 2016 of trade unions representing sales workers at two enterprises belonging to a corporate group in the food sector. The Committee observes that the complainant organizations allege a refusal by the enterprises to engage in collective bargaining and acts of interference and anti-union discrimination. The Committee notes that the enterprises, in the information forwarded by the Government, deny that they had any obligation to bargain collectively because the complainant organizations did not have the requisite number of members, and they also deny that they committed acts of interference or anti-union discrimination. The Committee observes that the Government, for its part, provides information on the various administrative and judicial proceedings, some of which have been concluded while others are in progress, relating to the allegations in the case.
2. 262. The Committee notes the allegations of the complainant organizations indicating that after presenting their proposed collective agreements to launch the process of collective bargaining with the enterprises, they had to refer economic and social collective disputes to the judicial authorities owing to the lack of response from the employers. The Committee notes the complainants’ allegation that, in order to settle the collective disputes, they had recourse jointly to the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, in which two meetings were held with the employers (25 October and 10 November 2017), and at the second meeting the complainants proposed to negotiate a single collective agreement, but no reply was obtained from the enterprises.
3. 263. The Committee also notes the information from the enterprises forwarded by the Government with regard to this allegation, indicating that the membership of the complainant organizations does not exceed 25 per cent of the total number of workers of each of the enterprises considered individually. In this regard, enterprise 1, as at 6 September 2019, had 654 workers, of whom 96 were union members (14.6 per cent), and enterprise 2, at the same date, had 1,382 workers, of whom 283 were union members (20.4 per cent). The Committee notes the enterprises’ assertion that, under section 51 of the Labour Code, the parties are not obliged to enter into a collective bargaining process.
4. 264. The Committee notes the detailed information provided by the Government with regard to such allegations, indicating that on 10 November 2017, at the mediation session of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, representatives of the corporate group and the three trade unions with a presence in that group (comprising the two complainant organizations which represent sales workers and another union organization) agreed to negotiate a new agreement in consensus with the three unions. The Committee notes the Government’s indication that during 2018 it followed up on compliance with this agreement with all the parties that signed it, but it did not obtain a response from the corporate group. The Committee notes the Government’s statement that the National Tripartite Committee on Labour Relations and Freedom of Association (which assumed the functions of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining) conducted a dialogue on the case at its meeting of 5 July 2019.
5. 265. The Committee also notes that the Government provides information on the collective disputes referred to various judicial bodies by the complainants regarding the refusal of the enterprises to launch the collective bargaining process. In this regard, the Committee notes that the Government reiterates the information provided by the enterprises concerning the conclusion of one of the economic and social collective disputes brought to court by SINTRAFL-GUA against enterprise 1. The Committee notes the ruling of 9 January 2018 of the Fourteenth Labour and Social Security Court and that this was upheld on 23 May 2018 by the Third Chamber of the Labour and Social Security Court of Appeal, as indicated by the Government and by enterprise 1. The Committee observes that the ruling of 9 January 2018 indicates: (i) the invalidity of a collective agreement for failure to comply with section 51 of the Labour Code (representativity threshold of 25 per cent to trigger the obligation to engage in collective bargaining); and (ii) the lack of legitimacy of the persons who requested the processing of the case file. The Committee further observes that the above-mentioned ruling also notes that: (i) the collective dispute brought to court by the union is inadmissible since a collective agreement dated 9 July 2015 was in force at enterprise 1, concluded between an ad hoc workers’ committee and the enterprise, covering all the workers and valid for three years; and (ii) the foregoing does not imply any violation of labour rights since on the expiry of the signed agreement new conditions of work could be negotiated with a view to improving the previous ones. As regards the disputes brought to court by SITRA GFLG against enterprise 2, one of which was terminated since the authorities’ requirements were not met, the Committee notes the Government’s indication that the second dispute brought to court by SITRA GFLG (No. 01173-2019-04484) is being processed.
6. 266. The Committee takes due note of the elements set out above. The Committee observes that these elements reveal that the main legal obstacles to the negotiations proposed by the unions lie, firstly, in the fact that both unions did not reach the representativity threshold (25 per cent) established by the Labour Code for triggering the obligation to negotiate and that, secondly, in the case of enterprise 1, there was already a collective agreement in force, signed in 2015 with an ad hoc workers’ committee. The Committee observes that section 49 of the Labour Code defines a “collective agreement on conditions of work” as “one that is concluded between one or more workers’ unions and one or more employers, or one or more employers’ organizations, for the purpose of regulating the conditions in which work is to be done and other related matters”. While observing that when the collective agreement was signed between the enterprise and the ad hoc workers’ committee in 2015, the union which brought an action regarding the collective dispute in 2017 had not yet been formed, the Committee recalls that collective agreements with the non-unionized workers should not be used to undermine the rights of workers belonging to the trade unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1347]. The Committee also recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members [see Compilation, para. 1389].
7. 267. The Committee also notes the information provided by the Government indicating that there is a collective agreement in force dated 2 December 2021, signed by SITRAFL and a related entity in the corporate group. Furthermore, observing that on 10 November 2017 at the mediation session of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, representatives of the corporate group and the three trade unions with a presence in this group agreed to negotiate a new collective agreement in consensus with these three unions, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee also recalls that it has considered that bargaining at the enterprise level with the most representative higher trade union level organization should only take place if it has a number of members in the company in accordance with the national legislation [see Compilation, paras 1231 and 1364].
8. 268. In the light of the above, while noting that the Government refers to the negotiation and conclusion of a collective agreement with another union, the Committee requests the Government to take all possible steps to encourage the corporate group and the complainant organizations to improve the climate of dialogue and mutual respect with a view to settling the matters of common interest and the points of contention that can arise through collective bargaining.
9. 269. The Committee notes the general allegations of the complainant organizations concerning acts of anti-union interference and discrimination. The Committee notes the complainants’ allegations regarding administrative suspensions of trade union members and leaders, with specific reference to the cases involving four of them and one case supported by the unions involving 18 suspended workers. The Committee also notes the complainants’ allegations regarding four cases of unionized workers who were dismissed. Furthermore, the Committee notes the allegations concerning acts of interference and unequal treatment between trade unionists and non-unionized workers by the enterprises, including the drawing up of a form to promote withdrawal from union membership. With regard to the alleged administrative suspensions, the Committee notes the enterprises’ indication that these suspensions have been applied in cases of work-related offences, and so the measures do not constitute arbitrary acts. With regard to the alleged anti-union dismissals, the Committee notes the information supplied by the enterprise indicating that: (i) the cases of only three unionized workers are described in the complaint, and so the reported cases constitute a very small number on which to base an allegation of an anti-union violation; and (ii) these workers do not have the status of union representatives. As regards the allegations concerning acts of interference and unequal treatment by the enterprises between unionized and non-unionized workers, the Committee notes the enterprises’ indication that: (i) there are no judicial or administrative cases in which such acts are denounced; (ii) the union statements are false, since the complaint is imprecise with respect to the date, place and workers affected; and (iii) the enterprises have received requests to quit union membership, which they have rejected since this would infringe freedom of association.
10. 270. The Committee notes the information provided by the Government indicating that, according to data from the General Labour Inspectorate, a total of 16 complaints between 2015 and 2019 relate to the case, as follows: (i) one complaint concerning anti-union actions such as coercion and reprisals was settled (terminated); (ii) eight complaints concerning violations of freedom of association (for alleged illegal deductions from wages in order to be able to take union leave, violations of Convention No. 87, reprisals against unionized workers, dismissals in the context of a summons for the enterprise, suspensions without pay and a disciplinary procedure imposed on a unionized worker) were being processed in accordance with the law; (iii) five complaints concerning reprisals against unionized workers, suspensions without pay and reprisals for belonging to a union, violations of freedom of association, and verification of the employment situation of a unionized worker were examined and resulted in the imposition of sanctions on the enterprises; (iv) one complaint was terminated because the complainant did not pursue it; and (v) one complaint concerning the dismissal of unionized workers was terminated because the veracity of the complaint could not be established. The Committee notes the Government’s indication that administrative sanctions have been imposed in five complaints and that one of the cases has been settled with the agreement of the parties. The Committee also notes the Government’s indication that in the case of the alleged anti-union dismissals: (i) reinstatement orders have been issued and one of the trade unionists has already been reinstated; (ii) in one of the cases, a judicial proceeding is pending because an appeal was lodged against the reinstatement order; (iii) in another case, the worker did not appear before the authority to coordinate his reinstatement pending judicial proceedings; and (iv) protection measures were granted to the worker who was a victim of extortion, and also to other workers who were the victims of other offences, and sanctions were imposed on the enterprise in the context of the alleged dismissal.
11. 271. The Committee takes due note of the various elements provided by the parties regarding the various allegations of acts of anti-union discrimination referred to above, including, inter alia, administrative suspensions and anti-union dismissals. The Committee observes that several administrative and judicial proceedings relating to these allegations were initiated before the complaint was presented to the Committee in 2019 and these are still awaiting settlement, despite several years having elapsed. In this regard, the Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation, para. 1139].
12. 272. The Committee notes that the complainants also allege that trade union leaders were barred from entering enterprise premises to perform their representative duties. The Committee notes that the Government forwarded the information provided by the General Labour Inspectorate, indicating that an administrative proceeding was initiated and is still pending subject to resolution of an issue raised by the enterprise. In this regard, the Committee recalls 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, para. 1591].
13. 273. The Committee notes the complainants’ allegation that one of the measures of anti-union repression adopted by the enterprise was the decision by the employers to withdraw the agents who provided security services on trucks engaged in the distribution of products (April 2018). In this regard, the Committee notes the complainants’ allegation that as a result of this measure many workers, including trade union members and leaders, have been the victims of assaults, abductions, armed violence, extortion and, in one case, murder. The Committee notes the enterprise’s information indicating that: (i) the dispute has nothing to do with a violation of freedom of association; rather, it is about occupational safety and health obligations; (ii) the State should guarantee public safety in accordance with article 2 of the Political Constitution of the Republic of Guatemala; (iii) the workers do not claim in their complaint to the local authorities that the change in security arrangements is a reprisal against unionized staff as they have stated to the Committee; and (iv) the parties are in a process of amicable dialogue with a view to finding a solution to the dispute with the intervention of the Ministry of Labour and the Ministry of the Interior. The Committee notes the indication by the complainants and the Government that SITRA GFLG brought a judicial action (case file No. 01214-2018-01548) for the application of that measure. The Committee notes the Government’s indication that a ruling in favour of SITRA GFLG was issued on 12 August 2022. The Committee observes that it does not have details of the content of the judicial action which was brought and that the Government did not attach the above-mentioned ruling, which are documents that would enable the Committee to conduct a full examination of this serious allegation, specifically regarding whether or not the measure indicated and adopted by the enterprise was an anti-union act. On this particular matter, the Committee recalls, on the one hand, that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Compilation, para. 1072]. On the other hand, the Committee also recalls that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, due process and the protection of premises and property belonging to workers’ and employers’ organizations, are fully respected and guaranteed, and that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind [see Compilation, paras 83 and 88].
14. 274. In the light of the above, the Committee requests the Government to take all necessary steps to ensure the prompt resolution of the pending administrative and judicial proceedings relating to the allegations concerning: dismissals, anti-union suspensions, and the alleged denial of access by the enterprises to trade union leaders to perform their representative duties for their members, and to ensure that the competent authorities determine whether the measure adopted by the enterprises to remove the security staff who were guarding the sales workers could have had an anti-union motive. The Committee requests the Government to provide information in this respect.
15. 275. Also observing that a number of complaints presented regarding allegations of anti-union acts have already resulted in the imposition of sanctions, the Committee requests the Government to take all necessary measures to prevent acts of interference and anti-union discrimination and thereby ensure full respect for freedom of association within the corporate group. The Committee requests the Government to keep it informed in this respect.
16. 276. The Committee notes with concern the complainants’ allegation regarding the murder of Mr Mario Joel Ruiz Sosa, a trade unionist, and notes the Government’s information in this regard, indicating that an investigation was conducted comprising around 40 procedures to elucidate the facts. The Committee also notes the Government’s indication that on 23 March 2023 the investigation was shelved since it had not been possible to identify the perpetrators, that the shelving of the investigation does not imply the definitive termination of the case (no res judicata), and that the investigation will have to be resumed if new elements emerge that enable the individual perpetrators to be identified, as long as criminal proceedings are not time-barred. In this regard, the Committee recalls that, in the context of Case No. 2609 relating to numerous murders of trade union members and other acts of anti-union violence, it is examining allegations of murder and death threats against members of workers’ organizations at the enterprises referred to above, and so it will examine matters relating to the murder of Mr Ruiz Sosa in the context of Case No. 2609.