Collective Bargaining Convention, 1981 (No. 154) - Guatemala (RATIFICATION: 1996)

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General level of collective bargaining in the country. In its previous comment, the Committee noted the observations made by trade union organizations denouncing the very low number of collective agreements signed in the country. In this regard, the Committee refers to its comments on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Article 5(a) of the Convention. Promotion of collective bargaining for all groups of workers in the branches of activity covered by the Convention. In its previous comment, after recalling the wide scope of application of the Convention, the Committee requested the Government to take the necessary measures to ensure that state employees with special civil contracts can exercise their right to organize and collective bargaining. The Committee notes that the Government: (i) indicates that, since 2018, the aforementioned categories of workers have been able to organize themselves in trade unions; (ii) forwards the information of the National Civil Service Office (ONSEC) on the ongoing efforts in the public sector to prevent the disguising of dependent employment relationships through the signature of service provision contracts, and on the corresponding rulings regarding reclassification issued by the Constitutional Court; and (iii) states that it has no knowledge of collective agreements applying to public sector workers with special civil contracts and, in particular, to workers employed under budget item 029.

The Committee also notes that, under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it was informed of the tripartite agreement of February 2018 aimed at aligning national legislation with the ILO Conventions ratified by Guatemala in the area of freedom of association, which includes the recognition of the trade union rights of public sector workers governed by temporary contracts and special schemes. As highlighted in its observations on Convention No. 87, the Committee hopes that the aforementioned tripartite agreement will be reflected in national legislation as soon as possible.

While it welcomes the progress made towards the recognition of the right to organize of state employees with special civil contracts, the Committee recalls that the present Convention applies to all contractual arrangements, and that the aforementioned workers should therefore be able to engage in collective bargaining to regulate their working and remuneration conditions. The Committee therefore requests the Government to take the necessary measures in this regard, and to provide information on the exercise in practice of the right to collective bargaining of the aforementioned categories of workers.

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The Committee notes the observations made by the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2014, which denounce in particular: (i) the very low number of collective agreements in force in the country (48) and (ii) the practice by several public institutions (National Office of the Public Prosecutor; Ministry of Education) of negotiating only with trade union organizations close to the Government. The Committee requests the Government to provide its comments in this respect.

Article 5(a) of the Convention. Promotion of collective bargaining for all groups of workers in the branches of activity covered by the Convention. In its previous comments, after noting that the Supreme Court had declared that state employees with special civil contracts could establish trade unions, the Committee invited the Government to issue an explanatory memorandum or a circular urging the labour inspectorate to ensure the observance of the right to organize and collective bargaining of these workers. The Committee notes the Government’s indication that: (i) despite its investigations, it has been unable to identify the court ruling referred to by the Committee; and (ii) the civil contracts signed by the public administration do not create labour relations between the parties and the individuals hired to carry out specific work or studies do not acquire the status of public officials. As the Convention applies to all categories of workers, the Committee requests the Government, without prejudice to the specific legal nature of the contracts referred to above, to take the necessary measures to ensure that state employees with special civil contracts can exercise their right to organize and collective bargaining. The Committee further requests the Government to provide information on any progress in this respect.

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The Committee notes the Government’s report and the comments on the application of the Convention from the Trade Union of Workers of Guatemala (UNSITRAGUA).

The Committee recalls that in its previous comments it asked the Government to send its observations on the comments made by UNSITRAGUA, which claim that the general rule in the public sector has been to refuse to engage in collective bargaining, to use delaying tactics or to fail to implement the budget estimates which are necessary for carrying out negotiations. According to UNSITRAGUA, another practice consists of forming bargaining committees ad referendum which refer the results of negotiations to the higher authority, which simply fails to approve what has been negotiated, thereby making it necessary for negotiations to begin again.

The Committee notes the Government’s statement that the legal provisions which apply to collective bargaining are observed; that the budget estimates are regulated and must be taken into account in negotiations, so that the necessary resources are made available and in order to comply with the regulations; and that the bargaining committees ad referendum are regulated by law. The Government adds that the Government’s policy of providing all necessary facilities so that workers can bargain collectively with all the relevant state departments is implemented through the Ministry of Labour and Social Welfare. The Committee observes that the Government attaches a list of 20 collective agreements signed in 2007, 29 in 2008 and 24 between January and July 2009, including collective agreements concluded with the judiciary, the Ministry of Health and other public institutions. The Committee emphasizes that the organization which sent the comments only refers to one specific case in which a collective agreement was signed.

With regard to the allegation concerning the denial of trade union rights to staff holding special civil contracts in various public institutions of the State, the Committee notes that, according to the reports of ILO technical assistance missions, the Supreme Court has declared that unions may be formed, even though this decision has not been publicized. The Committee requests the Government to issue an explanatory memorandum or circular urging the labour inspectorate to ensure the observance of the rights to organize and collective bargaining of these workers.

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The Committee notes the Government’s report and the comments on the application of the Convention made by the Trade Union of Workers of Guatemala (UNSITRAGUA).

The Committee notes that, according to UNSITRAGUA, the general rule in the public sector has been to refuse to engage in collective bargaining or to use delaying tactics or to fail to implement the budget estimates which are necessary for carrying out negotiations; another practice consists of forming bargaining committees ad referendum which refer the results of negotiations to the higher authority, which simply fails to approve what has been negotiated, thereby making it necessary for negotiations to begin again. The Committee requests the Government to send its observations on these comments.

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The Committee notes the Government's report.

Article 5(1) of the Convention. The Committee notes the information in the Government's report that under section 4 of Ministerial Agreement No. 001-97, the bipartite and tripartite conciliation committees for prevention and mediation in the resolution of disputes between workers and employers in the export processing zones, may hear cases concerning other branches of the industry whenever the interested parties so wish.

Article 5(2)(a). The Committee refers to its comment made in the context of Convention No. 98 concerning the requirement of the approval of two-thirds of the trade union membership in order to conclude or endorse a collective agreement.

Article 5(2)(e) of the Convention. As regards developments in respect of the draft text of the Procedural Labour Code being drawn up by employers and workers with ILO technical assistance, the Committee notes the Government's indication that the version on which agreement has been reached has still not been brought to its attention. The Committee again requests the Government in its next report to inform it on the developments regarding the draft, to the extent that it affects the functioning of the dispute resolution bodies and procedures.

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The Committee notes the Government's report.

Article 5, paragraph 1, of the Convention. The Committee requests the Government to indicate in its next report whether the Ministerial Agreement No. 001-97, which provides for the establishment of bipartite and tripartite conciliation committees for the prevention, mediation and amicable resolution of disputes between workers and employers in the export processing industry, provides for the creation of similar joint or tripartite bodies in the field of industrial relations in other industries.

Article 5, paragraph 2(a). The Committee notes that paragraph 2(d) of the Regulation of 1994 on the negotiation, approval and denunciation of collective agreements of 1994 concerning terms and conditions of employment in an enterprise or a specific workplace requires that the draft text of collective agreements to be presented to the General Labour Inspectorate accompanied by the decision by which the trade union general assembly concerned has agreed, by a vote of two-thirds of its members, to authorize the members of the executive committee to convene, approve and endorse the draft agreement, definitively or subject to a ballot. The Committee notes that, in this respect, it had criticized this Regulation when it had examined the application of Convention No. 98 by Guatemala and had requested the Government to take the necessary measures to amend the Regulation in question. The Committee proposes to continue examining this matter within the framework of the application of Convention No. 98.

Article 5, paragraph 2(e). The Committee requests the Government to inform it in its next report of developments in respect of the draft text of the Procedural Labour Code to the extent that it affects the functioning of the bodies and procedures to resolve disputes.