Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Guatemala (Ratification: 1952)

The Committee takes note of the Government's report.

The Committee recalls that the discrepancies between the national legislation and the Convention concern the following points:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which limits the eligibility for trade union office to Guatemalan nationals;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production.

The Committee has pointed out repeatedly that with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; and that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions in order to improve the cultural, economic and social conditions of the workers. With regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

Furthermore, the Committee wishes to recall that in previous comments it has also referred to the 259th Report of the Committee on Freedom of Association, in which that Committee examined allegations of excessive delay on the part of the authorities in trade union registration procedures. The Government replied that the Ministry of Labour and Social Security had taken the initiative of proposing amendments to a number of sections of the Labour Code.

The Committee notes that, according to the Government's report, the draft of a new Labour Code which has been approved at its first reading by the Congress of the Republic, is now before the Congress for examination and analysis and takes account of all the Committee's observations.

The Committee hopes that the new Labour Code will be adopted in the near future and that the final version will bring national legislation and practice into full conformity with the provisions of the Convention. The Committee asks the Government to provide information in this respect.