Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 376, Octobre 2015

1. 472. The complaint is contained in a communication dated 24 June 2013 from the National Federation of Workers (FENATRA).
2. 473. The Government sent its observations in communications dated 20 May, 22 June and 27 July 2015.
3. 474. 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. 475. In its communication dated 24 June 2013, FENATRA alleges that, in the context of a collective dispute, the Koa Modas Union of Workers was denied access to normal judicial proceedings, leaving its members defenceless against possible anti-union reprisals. In this connection, the complainant organization states that: (i) on 12 June 2013, in response to the refusal of clothing company Koa Modas SA to negotiate a collective agreement on working conditions, the legal representatives of the Koa Modas Union of Workers (hereafter “the union”) lodged a “collective dispute of a social and economic nature” against the company with the Second Labour and Social Welfare Court of Guatemala – the initiation of this process having the effect under Guatemalan law of prohibiting the parties to the conflict from retaliating against each other and guaranteeing that, for the duration of the dispute, any termination of employment contracts must be authorized by the court (involving a summons, and preventive measures); (ii) on Friday, 14 June 2013, the abovementioned court issued a resolution ordering the union to comply, within 48 hours, with four requirements – failing which the summons and the preventive measures would not be granted and the legal proceedings would be closed; (iii) on Saturday, 15 June 2013, the union members returned to the labour court in order to submit an application containing the information necessary to comply with the requirements, but found that, it being a Saturday, the court was closed; (iv) the Criminal Court of First Instance, which is open every day of the year, refused to receive the application, claiming that it had orders to receive only requests for constitutional protection (acciones de amparo); (v) that same day, 15 June, the union’s lawyer presented a complaint against the court to the Office of the Human Rights Ombudsman, for denying the unionized workers their right to defence and due process; (vi) on Monday, 17 June 2013, at 8 a.m., union representatives returned to the labour court to present the application, and explained their various attempts to submit it over the course of the weekend; (vii) that same day, the union’s lawyer presented a complaint against the Criminal Court of First Instance to the Supreme Court of Justice, for having refused to accept the application; and (viii) on 20 June 2013, the union was notified that the Second Labour and Social Welfare Court had issued a resolution on 17 June 2013, closing the lawsuit – and lifting the abovementioned preventive measures and nullifying the need for a summons – as a result of the union’s late compliance with its requirements.
2. 476. The complainant organization indicates that the decision of the Second Labour and Social Welfare Court to close the union’s lawsuit effectively left union-affiliated workers in a defenceless, vulnerable position in the dispute with their employer, thereby violating the guarantees contained in ILO Conventions Nos 87 and 98.

B. The Government’s response

1. 477. In its various communications, the Government indicates that, the dispute between the company Koa Modas SA and the union having led to the dismissals of dozens of unionized workers, the case is currently being examined by the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining. The Government states that this Committee has led five mediation sessions, which have resulted in the effective reinstatement of 37 union members whose reinstatement had been ordered by judicial authorities.
2. 478. In its most recent communication, the Government also transmits the observations of the chief judge of the Second Labour and Social Welfare Court of Guatemala, who states that: (i) on Friday, 14 June 2013, the abovementioned court adopted a resolution ordering the union to comply, within a period of 48 hours, with four requirements that were essential for the processing of its claim; (ii) on Monday, 17 June 2013, the stipulated period having elapsed (under the law, all days and hours are considered viable “working days” in relation to “disputes of an economic and social nature”), the court ordered that the union’s lawsuit be closed and that the need for a summons to be nullified and the preventive measures applicable to the parties to the dispute be lifted; (iii) on 18 June 2013, the court granted a hearing to the union representatives and confirmed that the resolution of the previous day was valid; (iv) the case file does not contain any documentation from the Criminal Court of First Instance nor any statements by the union representatives that refer to that court’s refusal to receive the union’s application; (v) on 5 July 2013, the appeals court declared without foundation the appeal made by the union against the decision to close its lawsuit; and (vi) independently of all of the above, the resolutions of 14 and 17 June 2013 of the Second Labour and Social Welfare Court were not adopted by the normal judge, who was on sick leave on those days.
3. 479. On the basis of these facts, the Government states that a clear violation of Conventions Nos 87 and 98 cannot be determined, as: (i) the application through which the union lodged the collective dispute of a social and economic nature did not comply with the mandatory validity requirements; and (ii) the union failed to present the Second Labour and Social Welfare Court with documentation from the Criminal Court of First Instance proving its refusal to accept the application in which the union complied with the requirements by the labour court’s deadline.

C. The Committee’s conclusions

1. 480. The Committee observes that the present case concerns the closure of a lawsuit filed by the union, and the alleged resulting defencelessness of its members. The Committee notes that the complainant organization alleges that it was denied the guarantee of normal judicial proceedings, in that: (i) on Wednesday, 12 June 2013, the union applied to initiate a “dispute of an economic and social nature” process against the company Koa Modas SA, which would have meant that the parties to the dispute would not have been able to retaliate against each other and that, for the duration of the dispute, any termination of an employment contract would require the authorization of the court; (ii) on Friday, 14 June 2013, the labour court gave the union a period of 48 hours within which to comply with a set of requirements; and (iii) on Monday, 17 June 2013, the union lawsuit was closed due to the late submission of the necessary documents, after the Criminal Court of First Instance, the only judicial body that is open all seven days of the week, refused to accept them over the course of the weekend.
2. 481. The Committee takes note of the Government’s observations, which corroborate the complainant organization’s statement concerning the 48-hour window within which to meet a set of requirements that the labour court imposed on Friday, 14 June 2013, and the closure of the lawsuit on Monday, 17 June 2013, due to the above 48-hour period having elapsed. The Committee notes that the Government states, however, that the case file does not contain any documentation from the Criminal Court of First Instance, nor any statement by the union representatives that refers to that court’s refusal to receive the union’s application over the course of the weekend, and that on 5 July 2013 the appeals court declared the union’s appeal against the decision to close its lawsuit without foundation.
3. 482. Further, the Committee notes that the information provided by the Government indicates that, following the submission of the present complaint, numerous unionized company employees (it does not specify the exact number) were dismissed, as a result of which the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining ran mediation sessions, achieving the effective reinstatement of 37 unionized workers whose reinstatement had been previously ordered by the courts.
4. 483. As concerns the existence of a document that proves that the Criminal Court of First Instance refused to receive the union’s application over the weekend of 15–16 June 2013, the Committee observes that in the annexes to the complaint submitted by the complainant organization there are copies of the official complaints presented by the union on 15 and 17 June 2013 to the Office of the Human Rights Ombudsman and to the labour court, respectively, which report the refusal of the Criminal Court of First Instance to receive the union’s application on 15 June 2013. The Committee also observes that in the report submitted by the Government on 1 October 2015 in the context of the examination by the Governing Body of the complaint concerning the non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made under article 26 of the ILO Constitution, it indicates that: (i) as part of the follow-up to the examination of the dispute between the union and the company, in August 2015 the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining met with the Amparo and Preliminary Proceedings Chamber of the Supreme Court of Justice with a view to guaranteeing that court officials from criminal courts and the Justice of the Peace receive applications concerning collective labour rights on weekends and public holidays; and (ii) on 7 September 2015, the full body of justices of the Supreme Court of Justice approved an agreement which provides that criminal courts and the Justice of the Peace will receive applications concerning collective labour rights on weekends and public holidays.
5. 484. From the preceding information, the Committee therefore observes that: (i) the labour court’s imposition of a 48-hour period within which its demands must be met by the union in conjunction with the fact that it was impossible for the union to submit its application over the weekend led to the closure of its lawsuit and the lifting of the protection regulations that apply to “disputes of an economic and social nature”; (ii) subsequent to the closure of the lawsuit and the presentation of the present complaint to this Committee, numerous unionized company workers were dismissed, 37 of whom were then reinstated as a result of the intervention of the judiciary and mediation sessions run by the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining; and (iii) following the contacts initiated by the aforementioned Committee, the Supreme Court of Justice approved an agreement that guarantees that the criminal courts and the Justice of the Peace receive applications relating to collective labour rights on weekends and public holidays.
6. 485. Recalling that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body, fifth (revised) edition, 2006, para. 818], the Committee notes with satisfaction that following the intervention of the Committee for the Settlement of Disputes before the ILO in the area of freedom of association and collective bargaining, the Supreme Court of Justice approved an agreement that guarantees that the criminal courts and the Justice of the Peace receive applications concerning collective labour rights on weekends and public holidays. The Committee requests the Government to provide a copy of the said agreement.
7. 486. The Committee additionally requests the complainant to indicate whether all the union-affiliated workers whose reinstatement had been ordered by the courts were in fact reinstated.