Rapport définitif - Rapport No. 383, Octobre 2017

1. 334. In its previous examination of the case, in the absence of a reply from the Government, the Committee presented an interim report to the Governing Body [see 372nd Report, paras 308–317, approved by the Governing Body at its 321st Session (June 2014)].
2. 335. Following this examination, the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) provided additional information in communications dated 16 June and 27 August 2015.
3. 336. The Government sent its observations in communications dated 28 August 2015 and 29 April 2016.
4. 337. 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. Previous examination of the case

1. 338. In its previous examination of the case in June 2014, the Committee made the following recommendations [see 372nd Report, para. 317]:
   • (a) The Committee deeply regrets to note that, despite several requests and urgent appeals, the Government has failed to provide any information on the allegations.
   • (b) While recalling that the right to recognition through official registration is a key aspect of the right to organize, the Committee urges the Government to send as a matter of urgency its observations regarding the allegations of unjustified refusal to register the two trade unions.
   • (c) Recalling that no person should be dismissed or prejudiced on account of legitimate activities such as the establishment of a trade union, the Committee strongly hopes that, if the existence of the judicial decisions referred to by the complainant is verified, the Government will ensure that the administration concerned has complied with the orders to reinstate in their posts the workers who were dismissed further to the establishment of a trade union and will keep the Committee informed in this respect.

B. The complainant’s additional allegations

1. 339. In communications dated 16 June and 27 August 2015, the complainant organization provides additional information concerning the refusal to register the “Pro Dignity” Union of Workers at the Tax Supervisory Authority (SIPROSAT) and the dismissals of the founding members of SIPROSAT and the Union of Workers with Principles and Values at the Tax Supervisory Authority (SITRAPVSAT). With regard to the refusal to register SIPROSAT, the complainant states that: (i) on 17 August 2012, a group of workers had filed an application with the Labour Directorate-General at the Ministry of Labour and Social Welfare (hereinafter the Labour Directorate-General) for the registration of SITRAPVSAT; (ii) following the Labour Directorate-General’s refusal to register SITRAPVSAT on 27 August 2012 and the dismissals of three of its founding members (Mr Waldemar Eduardo Ardón Sandoval, Ms Sandra Karem Meléndez Gómez and Mr Axel Alberto Orellana González), the tax administration workers decided to establish a new trade union, SIPROSAT, notifying the General Labour Inspectorate of this on 7 September 2012; (iii) given the prevailing atmosphere of anti-union repression in the tax administration and it not being possible to hold the constituent assembly during working hours, notice was given of the establishment of SIPROSAT a few hours before the constituent assembly was held, which took place at the end of the working day; (iv) even though the law does not provide for the involvement of an employer in the establishment of a trade union, a list of the founding members of SIPROSAT was immediately forwarded by the General Labour Inspectorate to the tax administration, which then immediately dismissed Ms Luisa Victoria Ramírez Palencia de Luna, Ms Dulce María José Ramírez García, Ms Sylvia Guadalupe Burbano Arriola, Ms Claudia Catalina García Jurado de Gálvez, Ms Diana Marisol Merlos Rodas, Mr Juan Manuel Yanes Chávez, Mr Juan Carlos Alegría Sáenz, Mr Omar Aleksis Ambrocio López, Mr Edwin Haroldo Mayén Alvarado, Mr Rodrigo Estuardo Letrán Mejía, Mr José Julio Cordero Castillo, Mr Luis Argelio Villatoro Cifuentes, Mr Edwin Alexander Villeda Portillo, Mr Byron Giovanni Esquivel Tercero and Mr Francisco Antonio Cifuentes Alecio (15 workers in total).
2. 340. The complainant states further that, after a number of obstacles, the Constitutional Court ruled, in judgments handed down in 2014 and 2015, that 13 of the workers dismissed further to the establishment of SIPROSAT and SITRAPVSAT should be reinstated, namely Ms Dulce María José Ramírez, Mr Luis Argelio Villatoro Cifuentes, Ms Claudia Catalina García Jurado de Gálvez, Mr José Julio Cordero Castillo, Ms Sylvia Guadalupe Burbano Arriola, Mr Edwin Haroldo Mayén Alvarado, Mr Edwin Alexander Villeda Portillo, Mr Byron Giovanni Esquivel Tercero, Mr Rodrigo Estuardo Letrán Mejía, Ms Diana Marisol Merlos Rodas, Ms Sandra Karem Meléndez Gómez, Mr Waldemar Eduardo Ardón Sandoval and Mr Axel Alberto Orellana González. In the judgments handed down in these cases, the Court maintained that, in order to establish when the immunity against dismissal of the founding members of the trade union came into effect, it was immaterial to ascertain whether the General Labour Inspectorate had been notified of the establishment of the trade union before the official act constituting the trade union had taken place and whether the union had actually been registered by the labour administration.
3. 341. The complainant notes, however, that the application for the reinstatement of Ms Luisa Victoria Ramírez Palencia de Luna, Mr Juan Manuel Yanes Chávez, Mr Juan Carlos Alegría Sáenz and Mr Omar Aleksis Ambrocio López was treated differently by the Constitutional Court, even though the facts in all of the cases resulting in the Constitutional Court ordering reinstatement were completely identical. The complainant adds that: (i) in the case of Ms Luisa Victoria Ramírez Palencia de Luna, Mr Juan Manuel Yanes Chávez, Mr Juan Carlos Alegría Sáenz and Mr Omar Aleksis Ambrocio López, the Constitutional Court did take into account the false information submitted by the then Minister of Labour and Social Welfare, according to which the General Labour Inspectorate had not received the notification of the establishment of SIPROSAT dated 7 September 2012; (ii) this false information had been dismissed by the Court in the other cases; and (iii) the existence of a clear violation of the right to effective protection and the principle of equality to the detriment of the above four workers led to an appeal being lodged, which was rejected by the Court.

C. The Government’s reply

1. 342. In its communication dated 28 August 2015, the Government states, firstly, that the refusal to register SIPRAVSAT and SIPROSAT was not an arbitrary act; rather, it was a decision based on compliance with existing legislation. With regard to the application to register SIPROSAT, the Government notes that Decision No. 12-2012 issued by the Labour Directorate-General refused to register the union for failure to reach the minimum required number of members (20), since: (i) of the 25 union members, 21 were also members of the applicant trade union SITRAPVSAT, in which case, article 212 of the Labour Code must be taken into account, which stipulates that no one may belong to two or more trade unions at the same time; (ii) as the tax administration indicated in its objection to the establishment of SIPROSAT, several union members were the employer’s representatives (Mr Vinicio Madrid Madrid and Ms Diana Marisol Merlos Rodas, lawyers authorized to represent the institution, and Mr David Felipe Reynoso, Mr Edwin Haroldo Mayen Alvarado and Mr Estuardo Letrán Mejía, occupying positions as chiefs or supervisors); and (iii) Ms Sandra Karem Meléndez Gómez and Mr Waldemar Eduardo Ardón Sandoval were no longer working for the tax administration, having had their contracts terminated prior to the trade union’s application for registration.
2. 343. The Government further states that, on 4 January 2013, SIPROSAT lodged an amparo appeal with the Second Chamber of the Labour and Social Welfare Court of Appeal against the Director-General of Labour and the General Secretariat of the Ministry of Labour and Social Welfare for the following grievances: (i) failure to notify the relevant departments in the Ministry of Labour and Social Welfare of the establishment of SIPROSAT; (ii) providing information to the employer on the identity of the union’s founding members; (iii) allowing the employer to intervene in the procedure to recognize the union’s legal status, including by processing the objection to the union's establishment lodged by the tax administration; and (iv) interference by the employer in the selection of those of the entity’s workers permitted to join the trade union. The Government states that both the lower and higher courts declared the amparo appeal inadmissible on the grounds of failure to first exhaust all available procedures and remedies.
3. 344. The Government provides additional information on the status of the judicial proceedings to secure reinstatement initiated by the tax administration’s workers dismissed at the time of the establishment of SITRAPVSAT and SIPROSAT, and of compliance with the corresponding reinstatement orders. The Government notes in this respect that: (i) of the 17 dismissed workers who took legal action, 13 were granted reinstatement orders, while four workers were denied reinstatement; (ii) of the 13 workers granted reinstatement orders, 12 were actually reinstated (Ms Dulce María José Ramírez, Ms Claudia Catalina García Jurado de Gálvez, Ms Sylvia Guadalupe Burbano Arriola, Ms Diana Marisol Merlos Rodas, Mr Luis Argelio Villatoro Cifuentes, Mr José Julio Cordero Castillo, Mr Edwin Haroldo Mayén Alvarado, Mr Edwin Alexander Villeda Portillo, Mr Byron Giovanni Esquivel Tercero, Mr Rodrigo Estuardo Letrán Mejía, Mr Francisco Antonio Cifuentes Alecio and Mr Waldemar Eduardo Ardón Sandoval), while Mr Axel Alberto Orellana’s case is still pending and, in this connection, the tax administration lodged an amparo appeal against the judicial decision on reinstatement; and (iii) of the 12 persons actually reinstated, four resigned from their posts in the following months.
4. 345. In its communication of 29 April 2016, the Government refers specifically to the Constitutional Court’s decisions refusing to reinstate four of the 17 workers dismissed in conjunction with the attempt to establish SITRAPVSAT and SIPROSAT. The Government refers in particular to the complainant’s allegation that all of the judgments concerning the founders of SIPROSAT should have been handed down in the same manner, given that all of the dismissals took place on the same day and on the same grounds. In this regard, the Government states that: (i) the notification of the establishment of SIPROSAT, sent to the General Labour Inspectorate on the morning of 7 September 2012, was issued before the process to register SITRAPVSAT had been finalized and before the constituent assembly had actually been held, which took place on the same day at 7 p.m.; (ii) between 2 p.m. and 3 p.m. on that day, the labour administration dismissed 15 workers, all of whom were included in the notification of the trade union’s establishment; (iii) legal proceedings were initiated for the reinstatement of these workers, in addition to two others, dismissed at the time of the establishment of SIPRAVSAT; (iv) the Constitutional Court ordered the reinstatement of 13 of these workers, while denying this right to Ms Luisa Victoria Ramírez Palencia de Luna, Mr Juan Carlos Alegría Sáenz, Mr Omar Aleksis Ambrocio López and Mr Juan Manuel Yanes Chávez, thus upholding the higher court rulings of the First Chamber of the Labour and Social Welfare Court of Appeal; (v) the Constitutional Court observed that the Court of Appeal had noted a series of irregularities in the actions of the workers making a claim, namely that, on the one hand, the General Labour Inspectorate had been informed of the establishment of the trade union on the morning of 7 September 2012, while its constituent assembly had been held in the evening of the same day, between 7 p.m. and 9 p.m., and, on the other hand, that the applications for the reinstatement of Mr Juan Carlos Alegría Sáenz and Mr Omar Ambrosio were submitted at 8.42 p.m. and 8.47 p.m., that is before the official act constituting the trade union, which confers extra protection against dismissal; and (vi) consequently, the Constitutional Court found that the applicants’ actions had been frivolous and in bad faith, in attempting to claim that at the time of their dismissal they benefited from the right to immunity against dismissal provided for in article 209 of the Labour Code granted to workers who are establishing a trade union organization.

D. The Committee’s conclusions

1. 346. The Committee recalls that the allegations in the present case concern both the refusal by the Ministry of Labour and Social Welfare to register two trade union organizations within the tax administration and anti-union dismissals affecting the founders of these trade unions and the refusal by the tax administration to comply with reinstatement orders. The Committee notes that the allegations concerning the refusal to register SITRAPVSAT, which were presented by the complainant in several complaints, are already under examination by the Committee in Case No. 3042. The Committee will therefore focus in the present case on the allegations concerning the refusal to register SIPROSAT and the alleged anti-union dismissals of the founding members of both organizations.
2. 347. With respect to the alleged unjustified refusal to register SIPROSAT which, according to the complainant, involves collusion between the tax administration and the labour administration, the Committee notes that the Government states that the trade union was not registered because it did not have the minimum number of workers required in law (20), since: (i) 21 of the 25 members of SIPROSAT were already members of the applicant trade union SITRAPVSAT, and it was not possible under Guatemalan law to be a member of two trade union organizations at the same time; and (ii) several founding members of the union occupied positions of trust within the tax administration, meaning that they could not join the union. The Government adds that the complainant lodged an amparo appeal alleging irregularities and unlawful acts committed by the tax administration and the labour administration when considering the application to register SIPROSAT, and that the appeal was declared inadmissible on the grounds of failure to first exhaust all available administrative remedies.
3. 348. With regard to the fact that a number of workers belonging to SIPROSAT had formerly been members of the applicant trade union SITRAPVSAT (both trade unions were in the same entity), the Committee notes that the application to register SITRAPVSAT, forwarded to the labour administration on 17 August 2012, was refused, in Decision No. 008-2012 of 27 August 2012, and that the labour administration was notified of the establishment of a new trade union in the tax administration (in this case SIPROSAT) on 7 September 2012. In so far as members of SITRAPVSAT joined SIPROSAT after the refusal to register the first of the two unions, the Committee considers that the issue of belonging to two applicant unions should not have impeded the registration of SIPROSAT. With respect to the presence of workers occupying positions of trust among the founding members of SIPROSAT, resulting in the prohibition of its right to organize, the Committee recalls that limiting the definition of managerial staff to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the condition that these categories of staff are not defined too broadly that [see Digest of decisions and principles of the Committee on Freedom of Association, fifth (revised) edition, 2006, para. 249]. The Committee considers that the trade union organization can adapt its request to the above consideration and submit once again its application for registration, if it so wishes.
4. 349. Concerning the application to reinstate 17 founding members of SITRAPVSAT (two) and SIPROSAT (15), the Committee notes that the complainant and the Government both agree that 13 workers (two founding members of SITRAPVSAT and 11 founding members of SIPROSAT) were granted reinstatement orders, while another four founding members of SIPROSAT (Ms Luisa Victoria Ramírez Palencia de Luna, Mr Juan Manuel Yanes Chávez, Mr Juan Carlos Alegría Sáenz and Mr Omar Aleksis Ambrocio López) were denied this right. The Committee also notes from the information provided by the Government that 12 of the 13 reinstatement orders were complied with, while the examination of the amparo appeal lodged by the tax administration against the judicial decision on the reinstatement of Mr Axel Alberto Orellana is still pending. The Committee notes this latest information and expects that the decision of the amparo proceedings concerning the reinstatement of Mr Axel Alberto Orellana will be rendered rapidly.
5. 350. With regard to the situation of the four founding members of SIPROSAT whose application to the courts for reinstatement was rejected by the Constitutional Court, the Committee notes, firstly, that the complainant alleges that: (i) the facts leading to the dismissal of the four founding members were completely identical to those in the other 11 cases of dismissal of the founding members of SIPROSAT, in respect of which the Constitutional Court did order reinstatement; (ii) in those 11 cases, the Court deemed that it was immaterial to ascertain whether the General Labour Inspectorate had been notified of the establishment of the trade union before the official act constituting the union had taken place, or whether the union had actually been registered by the labour administration. However, the Court took the opposite view with respect to the four non-reinstated workers, and no explanation or justification has been provided for the different criteria applied by the Court. The Committee notes, secondly, that the Government states that the Constitutional Court refused to register the four workers, upholding the Court of Appeal’s decision that it had found irregularities, consisting mainly in the fact that the General Labour Inspectorate had been notified of the process to establish the union in the morning of 7 September 2012, while its constituent assembly had been held on the evening of the same day, between 7 p.m. and 9 p.m. This meant that, at the time of their dismissal, the four workers did not benefit from the protection provided for in the Labour Code (which provides that for a period of 60 days from the notification of the establishment of a trade union the employer must obtain judicial authorization to dismiss the union’s founding members).
6. 351. In the light of the foregoing and from reading the Constitutional Court’s judgments provided by the complainant and the Government, the Committee notes the following: (i) on the morning of 7 September 2012, the General Labour Inspectorate was notified that a trade union organization was being established, and was provided with a list of the names of its founding members; (ii) between 3 p.m. and 4 p.m. on the same day, the 15 founding members of the applicant organization were dismissed; (iii) between 7 p.m. and 9 p.m. on that day, the founding members of SIPROSAT held their constituent assembly and the dismissed workers immediately sought reinstatement through the courts; (iv) in 11 judgments handed down between 15 July 2014 and 13 January 2015, the Constitutional Court upheld the reinstatement of 11 founding members of SIPROSAT, endorsing the lower court reasoning that, from the moment the General Labour Inspectorate had been notified of the process to establish a trade union, the employer was obliged to obtain judicial authorization before dismissing its founding members; and (v) in judgments dated 11 December 2014 and 6 August 2015, the Constitutional Court upheld the refusal to reinstate four founding members of SIPROSAT, endorsing the lower court reasoning that notifying the General Labour Inspectorate of the process to establish a trade union before holding its constituent assembly constitutes an irregularity and that the dismissal of the four workers, which took place before the assembly, did not require prior judicial authorization.
7. 352. The Committee notes that of the 15 dismissals of the founding members of SIPROSAT, 11 workers obtained reinstatement through the courts, while this right was denied to another four workers. The Committee notes that, according to the decision of the Constitutional Court concerning these latter, the applicants’ actions had been frivolous and in bad faith in attempting to claim that at the time of their dismissal they benefited from the right to immunity against dismissal. The Committee recalls that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Digest, op. cit., para. 770]. The Committee considers that, given the circumstances surrounding the dismissal of Ms Luisa Victoria Ramírez Palencia de Luna, Mr Juan Manuel Yanes Chávez, Mr Juan Carlos Alegría Sáenz and Mr Omar Aleksis Ambrocio López, the Government could transmit to the tax administration the possibility of establishing conversations to arrive at a constructive dialogue with the union leaders about these circumstances.