Título Duodécimo. Procedimiento en la Resolución de los Conflictos Colectivos de Carácter Económico-Social

Employers and workers shall endeavor to resolve their differences by means of direct settlement, with the sole involvement of themselves or with that of any other amicable conciliators. To that end, workers may establish ad hoc or permanent councils or committees in each workplace, composed of no more than three members, who shall be responsible for presenting to the employers or to the representatives thereof, verbally or in writing, their complaints or requests. Such councils or committees shall always conduct their efforts in a courteous manner and when they so proceed the employer or its representative may not refuse to receive them, as promptly as possible.

When negotiations between employers and workers lead to a settlement, a record of what was agreed shall be drawn up and an authentic copy shall be sent to the General Labor Inspectorate within the twenty-four hours following its signing. The transmittal shall be made by the employers and, in their default, by the workers, either directly or through the local political or labor authority.

The Inspectorate must ensure that these agreements do not contravene the legal provisions that protect workers and that they are rigorously complied with by the parties. Contravention of what was agreed shall be punished with a fine of ten to twenty quetzales if the offenders are workers and of one hundred to two hundred quetzales in the case that the violators are employers, without prejudice to the party that has complied being able to demand before the Labor and Social Welfare Tribunals the enforcement of the agreement or the payment of the damage and losses caused to it.

Each time one of the councils or committees referred to in Article 374 is formed, its members shall so inform the General Labor Inspectorate, by means of a note which they shall sign and send within the five days following their appointment.

When in a workplace an issue arises that is capable of giving rise to a strike or work stoppage, the interested parties, if they are employers or non-unionized workers, shall prepare and sign a list of demands, in which they shall likewise designate three delegates who are thoroughly familiar with the causes giving rise to the conflict and upon whom, in the document itself, sufficient power shall be conferred to sign any settlement definitively, or merely ad referendum.

If they are unionized employers or workers, the General Assembly of the organization, in accordance with the provisions of this Code and the respective Statutes, shall be the body that agrees to raise the dispute, with representation of the trade union vesting in the full Executive Committee or in three of its members to be designated by the General Assembly itself.

The delegates or the trade union representatives, as applicable, shall deliver the list of demands to the respective judge, who shall rule forthwith ordering its notification to the employer, workers or trade union summoned, no later than the day following its receipt. For such purpose, the claimant party shall submit, together with its request, the list of demands in duplicate, so that proceedings may continue in the prescribed manner.

When it concerns negotiation of a collective agreement on conditions of work, the respective list shall be submitted to the other party for its discussion through direct negotiation and the provisions of the last paragraph of Article 51 of this Code shall govern. Upon expiry of the period provided for in said provision, proceedings shall continue as provided in this Chapter, insofar as applicable.

From the moment the statement of demands is delivered to the respective judge, the conflict shall be understood to be raised for the sole effect that employers and workers may not take the slightest retaliation against one another, nor impede one another in the exercise of their rights.

If the employer violates this provision, the employer shall be sanctioned with a fine equal to the equivalent of ten to fifty monthly minimum wages in effect for non-agricultural activities. In addition, the employer shall immediately repair the damage caused by the workers, and effect payment of the wages and other benefits not received during the dismissal, without this exonerating the employer from the criminal liability that the employer may have incurred. If the employer's conduct lasts more than seven days, the fine incurred shall be increased by fifty percent (50%). If a worker, or collectively a trade union, violates this provision, such worker or trade union shall be sanctioned with a fine equivalent to one to ten monthly minimum wages for non-agricultural activities and shall be obligated to repair the damage and losses caused.

From the moment referred to in the preceding article, any termination of employment contracts of the enterprise in which the dispute has been raised, even in the case of workers who have not signed the list of petitions or who have not joined the respective dispute, must be authorized by the judge, who shall process the matter in the form of an incidental proceeding and without the final decision issued therein prejudging the fairness or unfairness of the dismissal.

If termination of employment contracts occurs without having previously followed the incidental procedure established in this article, the judge shall apply the sanctions referred to in the preceding article and shall order that the dismissed worker or workers be immediately reinstated and, in case of disobedience, shall double the sanction as provided in the preceding article. If disobedience should still persist, he shall order the certification of the pertinent matters against the offender, for his prosecution, without this exempting him from the obligation to reinstate the affected workers to their work.

The judge shall act immediately upon the omission of the said procedure coming to his knowledge on its own initiative or by complaint. In the latter case, he must issue his reinstatement decision within the twenty-four hours following the filing of the complaint with the tribunal, and in the same decision he shall designate one of the employees of the tribunal, so that in the capacity of executor thereof he shall effect the reinstatement.

The reinstatement procedure established in this article is also applicable when the right of protection against dismissal established in Article 209 of this Code is infringed.

The statement of demands must clearly set forth what they consist of, and to whom they are addressed, what the complaints are, the number of employers or of workers supporting them, the exact location of the workplaces where the controversy has arisen, the number of workers rendering their services therein and the first and last names of the delegates and the date.

The application must contain: the judge to whom it is addressed, the first names, last names and other personal particulars of the delegates, place to receive notifications, which must be established in the town where the Trial Court has its seat, the name of the summoned party, address where the latter is to be notified, the indication that the statement of demands is attached in duplicate and the request for processing in accordance with the rules of the preceding articles.

If the application filed does not meet the legal requirements, the tribunal, on its own initiative, shall correct it by record. Immediately, it shall admit the application for processing.

Within the twelve hours following receipt of the statement of petitions, the Labor and Social Welfare Judge shall proceed to form the conciliation tribunal in accordance with the provisions of Article 294, shall notify the other party by all means at its disposal that it must appoint within twenty-four hours a delegation analogous to that provided for in Article 377, with a warning that the judge shall make the appointment ex officio in case of disobedience. Its members must designate a place to receive notifications in the locality where the tribunal is seated and, should they fail to do so, they shall continue to be made to them at the place designated by the summoning party, or by the notice board of the tribunal, if such place is not located at the seat thereof.

If at the time the Conciliation Tribunal is to be constituted, any one or more of its members has any legal impediment or ground for excuse, he shall state it immediately, so that the substitute may be called. If they state the impediment or excuse subsequently, the disciplinary measure provided for in Article 297 shall be imposed on them.

Except as established in the preceding paragraph, during the conciliation period there shall be no appeal whatsoever against the decisions of the tribunal, nor shall recusals, dilatory defenses or incidents of any kind be admitted.

The Conciliation Tribunal, once the disqualifications that may have been raised have been resolved, shall declare itself competent and shall meet without loss of time for the purpose of summoning both delegations to an appearance, which shall be held within the following thirty-six hours and with absolute preference over any other matter.

The Conciliation Tribunal may constitute itself at the place of the conflict if it considers it necessary.

Two hours before the time set for the appearance, the Conciliation Tribunal shall hear separately the delegates of each party and they shall answer with precision and comprehensiveness all questions put to them.

Once it has clearly determined the claims of the parties in a concise record, it shall hold the necessary deliberations and then call the delegates to said appearance, for the purpose of proposing to them the means or general bases of settlement as its prudence dictates and which must be agreed by majority of the members of the tribunal.

If a settlement is reached, the dispute shall be deemed terminated and the parties shall be obligated to sign and comply with the agreement drafted, within the term fixed by the Conciliation Tribunal. Refusal to comply with the agreement shall be sanctioned with a fine of five hundred to one thousand quetzales, in the case of employers, and ten to fifty quetzales if the reluctant parties are the workers. The agreement executed shall be binding upon the parties for the time limit determined therein, which may not be less than one year. If this requirement is omitted, the term shall be understood to be one year.

The right of the party that has complied with the agreement to declare a strike or lockout, as appropriate, without resorting again to conciliation, provided it does so for the same causes that gave rise to the disagreement, is reserved. Said party may also opt to request from the Labor and Social Welfare Tribunals enforcement of the agreement at the expense of the party in breach or payment of the damage and losses as they prudently determine.

The Conciliation Tribunal, if its recommendations are not accepted, may repeat a single time, within the following forty-eight hours, the procedure referred to in Article 385; but if it is unsuccessful it shall deem its intervention definitively concluded.

If the tribunal makes use of this power, the president shall appoint the other two members or any labor or political authority to gather within the indicated time limit the greatest collection of data and evidence that facilitate the decision of the conflict.

If the delegates of any of the parties fail to attend, once they have been duly summoned, any of the appearances referred to in Articles 384 and following, the Conciliation Tribunal shall have them brought, without loss of time, through the police authorities and shall impose on each of the defaulters, as a disciplinary correction, a fine of twenty-five to one hundred quetzales or of one hundred to five hundred quetzales according as they are, respectively, workers or employers.

However, the tribunal may revoke the order directing the imposition of the fine if the interested parties prove, within the following twenty-four hours, the just causes that absolutely prevented them from attending.

Once the conciliation procedures have been exhausted without the delegates having accepted the settlement or agreed to submit the dispute to arbitration, the tribunal shall draw up a report, a copy of which it shall transmit to the General Labor Inspectorate. This report shall contain a precise enumeration of the causes of the conflict and of the recommendations made to the parties to resolve it; furthermore, it shall determine which of them accepted the settlement or whether both rejected it, and the same with respect to the proposed or suggested arbitration.

The report referred to in the preceding article or, as the case may be, the settlement agreement, shall be signed by all the members of the Conciliation Tribunal and by its secretary.

If the delegates agree to submit the matter to arbitration, all the documents, evidence and records submitted or prepared during conciliation shall serve as the basis for the corresponding trial.

The proceedings of the Conciliation Tribunals, once they have been legally constituted, are always valid and cannot be annulled on grounds of lack of jurisdiction.

The same rule applies to their decisions, provided they have acted within the powers conferred upon them by the laws.

In no case may the conciliation proceedings last more than fifteen days, counted from the moment when the Labor and Social Welfare judge received the list of demands, with all the requirements that Article 381 requires. Upon expiration of said term, the tribunal shall deem its intervention concluded and shall immediately bring the fact to the knowledge of the Supreme Court of Justice, so that the latter orders the dismissal of the judicial public officials or employees who in any way are found guilty of the delay.

In the event that there is neither a settlement nor an agreement to submit to arbitration, within the twenty-four hours following the failure of conciliation, any of the delegates may ask the respective Labor and Social Welfare judge to rule on the legality or illegality of the movement, which ruling must be awaited before proceeding to strike or lockout. The corresponding order shall be issued subject to subsequent causes changing the characterization made therein, and therein a ruling shall be made as to whether the requirements established in Articles 241 and 246 have been met.

Said decision shall be immediately referred in consultation to the Jurisdictional Chamber of the Labor and Social Welfare Court of Appeals, which shall issue the final ruling within the forty-eight hours following that in which it received the case file.

The secretary of the latter tribunal shall communicate by telegraphic means the operative part of the corresponding decision to the delegates of the parties and to the General Labor Inspectorate, as well as to the General Directorate of the National Police, so that the latter may take the measures necessary to maintain order.

For the declaration of illegality of a strike or lockout agreed upon and maintained de facto, the matter shall be processed as an incidental proceeding, upon the request of a party, but the evidence period shall be only five days. The applicable notifications shall necessarily be made to the parties at the workplace in question.

If no settlement has been reached or no agreement to submit to arbitration has been signed, the workers shall have a time limit of twenty days to declare the strike qualified as legal, counted from the moment they are notified of the decision of the Chamber confirming the ruling of the judge. Once this period has elapsed without having declared it, they must resort to compulsory arbitration.

The same rule applies to employers, but the time limit for declaring the lockout is three days and shall begin to run from the expiry of the month referred to in Article 246.

If within the time limits mentioned in the preceding article the strike or the lockout, as applicable, is declared, any of the delegates of the parties may request the respective judge at any time after such declaration to rule on the justice or injustice of the movement, for the effects indicated in articles 242 and 252.

The judge shall issue this ruling within the fifteen days following the day on which it was requested. For that purpose he may request from the parties such evidence as he considers necessary, and if he deems it appropriate he shall obtain a technical-economic opinion from the Ministry of Labor and Social Welfare, which is obligated to render it within ten days from when requested. All of the foregoing without prejudice to the right of the parties to submit such evidence as they deem relevant.

Once a strike is ruled just or a lockout unjust, the judge must take all necessary measures aimed at guaranteeing and making effective the payment of the liabilities determined in article 242, second paragraph, and 252, last paragraph. The decision must contain:

a)The reasons supporting it;

b)The period within which the workers in the enterprise must resume their activities;

c)The benefits that the employer must grant in the case of a strike;

d)The obligation of the employer to pay the wages for the duration of the strike, as well as the right of the workers to continue remaining idle in the event that the employer refuses to grant the benefits indicated in subsection c) of this article. The wages of the workers, once the strike has been ruled just, must be assessed and paid judicially in each pay period, with recourse to enforcement proceedings in case of employer refusal, without prejudice to the other rights that in such cases this Code grants to the workers; and

e)Such other declarations as the judge deems appropriate.

Once a strike is ruled unjust or a lockout just, the judge must proceed, in the first case, in the same manner indicated in the preceding paragraph, insofar as applicable, in order to guarantee the liabilities established in article 242, last paragraph, and, in the second case, must expressly authorize the employer to exercise the right granted to him by the third paragraph of article 252. All of the foregoing, without prejudice to any criminal liability incurred.

Arbitration proceeds:

1)Optionally:

a)When the parties so agree, before or immediately after the conciliation proceeding;

b)When the parties so agree, once they have gone on strike or lockout, declared legal.

2)Compulsorily:

a)In cases in which, once the strike or lockout has been declared legal, the corresponding period elapses without them having been carried out;

b)In the cases provided for in subparagraphs a) and d) of article 243 of this Code;

c)In the event that, a determination of legality or illegality of a strike having been requested, once the conciliation proceeding has been exhausted, the requirement referred to in subparagraph c) of article 241 of this Code is not satisfied, and provided that the number of workers supporting the dispute constitutes at least an absolute majority of all laborers working in the enterprise or work centers concerned.

In the case of subparagraph b) of optional arbitration, the parties, upon so agreeing, must resume the work that was suspended and submit the decision on the dispute to the respective Arbitration Tribunal for consideration. The resumption of work shall be under the same or better conditions in effect at the time the suspension occurred. This matter must be proven before the competent tribunal by means of a declaration signed by both parties, and the judge may, if deemed advisable, order its verification by pertinent means.

In cases of optional arbitration, the parties must submit before the respective Labor and Social Welfare judge and in writing, the reasons for their divergence and the points on which they agree; additionally designating three delegates for each party with sufficient powers to represent them in accordance with the provisions of Article 409, indicating a place to receive notifications; should they fail to satisfy this requirement, the judge shall order that the omission be remedied.

In cases of mandatory arbitration, the judge shall convene the parties and shall draw up a record containing the requirements enumerated in the preceding paragraph.

Once all the foregoing procedures have been completed, the judge, within the following twenty-four hours, shall proceed to constitute the tribunal.

The provisions of Article 383 of this Code are applicable to arbitration tribunals.

Having previously heard the same matter in conciliation shall be grounds for recusal for the members of the tribunal, but such recusal may be waived by the delegates of both parties.

Once the impediments that may have been raised have been resolved, the Arbitration Tribunal shall declare itself competent and shall render judgment within the fifteen subsequent days.

During this period, its orders or rulings shall admit no appeals.

The Arbitration Tribunal, within the time limit provided for in the preceding article, shall hear the delegates of the parties separately or in joint appearances, exercising the power granted to it by Article 388; it shall personally question the employers and the workers in dispute on the points it deems necessary to clarify; on its own initiative or at the request of the delegates, it shall order the prompt conduct of such proceedings as it deems appropriate, including those of evidence, and, if it deems it appropriate, it shall request a technical-economic opinion from the Ministry of Labor and Social Welfare, on the various matters submitted for its decision, or on any one or more of them.

The judgment shall decide separately the petitions of Law from those involving economic or social claims, which the law imposes or determines and which are left to the will of the parties in conflict. As to the latter, the Arbitration tribunal may decide with entire liberty and in conscience, denying or granting, in whole or in part, what was requested and even granting things different from those requested.

The determination of the points of fact corresponds preferably to the members of the tribunal and the declaration of the law that is its consequence to the labor judges, but if the former fail to reach agreement, the president of the tribunal shall decide the disagreement.

Special record shall be made separately in the award of what have been the principal causes that have given rise to the conflict, of the recommendations that the tribunal makes to remedy them and to avoid similar controversies in the future and, where applicable, of the omissions or defects noted in the law or in the applicable regulations.

In case of appeal filed within the three days following notification of the ruling to the parties, the record shall be elevated to the Labor and Social Welfare Appeals Chamber, which shall issue a final judgment within the seven days following receipt thereof, unless it orders any evidence for better provision, which must be completed within ten days.

The arbitral award is binding on the parties for the term it determines, which shall be not less than one year.

The party that refuses to comply with or that fails to comply with the terms of an arbitral award shall be sanctioned with a fine of five hundred to two thousand quetzales, in the case of employers, and of twenty-five to one hundred quetzales in the case that the offenders are workers.

The right of the party that has complied with the award to request from the respective judge of Labor and Social Welfare its enforcement, insofar as possible, and the payment of the damage and losses as prudentially fixed, is reserved. Said party may also opt to declare itself on strike or on lockout, as applicable, without resorting again to conciliation or arbitration, provided that it does so solely for non-compliance with the decisions of the award.

As long as there is no non-compliance with the arbitral award, no collective disputes may be raised over the matters that gave rise to the proceeding.

An authorized copy of every arbitral award shall be sent to the General Labor Inspectorate.

Before the Conciliation and Arbitration Tribunals and with the advice of an attorney, the parties must appear personally or be represented:

a)By relatives within the degrees established by law, or attorneys, in the case of individual employers;

b)By fellow workers, in the case of workers; and

c)By their directors, managers or senior employees, with sufficient power, in the case of legal persons summoned as the employer.

In all cases, those appearing must prove their status.

The Conciliation and Arbitration Tribunals may require from the authorities and state technical commissions and from the institutions and persons related to the conflict, the answer to the questionnaires addressed to them, in relation to the matter of which they have cognizance. Likewise, they may visit and examine the workplaces and require from the parties such reports as they deem necessary for the performance of their function. Obstruction or unjustified refusal preventing the carrying out of these proceedings shall be sanctioned with a fine of fifty to five hundred quetzales.

The president of each Conciliation and Arbitration Tribunal may summon and notify the parties or the delegates through the National Police, the labor authorities or the authorities of any kind, who are obligated to give preferential attention to the request made to them. Such proceedings are not subject to any further formality than the record placed in the case file that it has been carried out and, absent evidence to the contrary, are deemed authentic.

The Conciliation and Arbitration tribunals shall assess the result and the value of the evidence, according to their best knowledge and understanding, without being subject to the rules of ordinary civil law.

All records or proceedings carried out by the Conciliation and Arbitration Tribunal shall be recorded in writing and shall be signed by its members, by the persons who have participated therein and the secretary; as well as any other observations deemed pertinent.