Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the Government’s report and the report on the direct contacts mission which took place in Guatemala from 23-27 April 2001. It also notes the discussion held in the Conference Committee on the application of Convention No. 87. In addition, the Committee notes the comments made by the Trade Unions and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply to them. The Committee requests the Government to supplement its reply by answering point by point the questions raised by the UASP.

Legislative matters

The Committee notes with satisfaction the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April (during the direct contacts mission) and Legislative Decree No. 18-2001 of 14 May, which settle a number of issues raised by the Committee. Specifically, these Legislative Decrees:

-  eliminate the strict supervision of trade union activities by the Government (section 211 of the Labour Code);

-  eliminate the requirement that members of a trade union executive committee must have no criminal record and must be able to read and write (former sections 220 and 223);

-  eliminate the obligation to obtain a two-thirds majority of the members of a trade union in order to call a strike (former section 222) and instead provides for a majority of 50 per cent plus one of the members making up the quorum of the assembly;

-  eliminate the requirement, in order to call a strike, of at least two-thirds of the workers employed in the enterprise (former section 241) and instead provides for 50 per cent plus one of the workers employed in the enterprise, excluding trusted workers and workers representing the employer. The Committee nonetheless points out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level;

-  eliminate the prohibition on strikes or suspension of work by (1) agricultural workers during harvests (former section 243(a)), and (2) workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (section 243), so that it is now possible for the President of the Republic to suspend a strike only when it seriously affects the activities and public services essential for the country (new final paragraph of section 243); in essential public services, the parties and the judicial authority participate in determining the minimum service;

-  repeal the provision ordering the arrest and trial of anyone publicly attempting a strike or unlawful work stoppage (former section 257); and

-  eliminate the requirement for the courts (in the event of unlawful strikes or work stoppages) to order the national police to ensure continuity of work (former section 255) and instead provides that the courts "may" order and execute precautionary measures to ensure the continuity of activities and the right to work of persons wishing to work;

-  eliminate (implicitly, by virtue of the new section 222 of the Labour Code) the requirement of two-thirds of union members in order to sign a draft collective agreement, which had been provided for in section 2(d) of the Regulation of 19 May 1994 concerning collective agreements.

The Committee observes, however, that the abovementioned legislative decrees do not cover other provisions of the legislation which are not in conformity with the Convention, namely:

-  the requirement of being Guatemalan in order to establish a provisional trade union executive committee (it should be noted that this requirement derives from the National Constitution); and

-  the requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Code).

The Committee requests that the Government take steps to bring the legislation fully into conformity with the Convention on these points.

With regard to the provision of the Penal Code imposing a penalty of imprisonment of from one to five years for anyone engaged in acts for the purpose of paralysing or disrupting the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code), the Committee asks the Government to state whether, with the repeal of section 257 of the Labour Code, which provided for the arrest and trial of persons publicly attempting unlawful strikes, section 390(2) of the Penal Code has ceased to apply in the event of strikes.

As regards the imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport, energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996), the Committee requests that the Government indicate, in the light of the new version of section 243 and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions of Legislative Decree No. 35-96 have, by implication, been repealed.

Practical application

The Committee asks the Government to comment on the assertion by the trade unions that there have been no instances of legal strikes in recent years.

The Committee notes the murders, acts of violence and death threats against trade union members reported in Case No. 1970, examined by the Committee on Freedom of Association and the conclusions of the mission report in this connection. The Committee emphasizes that trade union rights can be exercised only in a climate which is free of violence and pressure. It expresses the very firm hope that the Government will make every effort to ensure effective observance of human rights and of the fundamental freedoms essential to the exercise of trade union rights.