Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Guatemala (Ratification: 1952)

The Committee notes the Government’s report and the discussion that took place in the Conference Committee on the Application of Standards in June 2003. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) (18 September 2002), the General Confederation of Workers of Guatemala (CGTG) (11 September 2002 and 27 January 2003), the Guatemalan Union of Workers (UGT) (30 October 2002), and the Government’s response to them.

1. Failure to comply with court orders to reinstate workers dismissed for trade union activities. The Committee notes the Government’s statement in its report that section 414 of the Penal Code (which the Committee requested the Government to amend) has been amended by Decree No. 57-2000 and that failure to obey final orders and sentences handed down by the judicial authority is penalized by a fine of from 5,000 to 50,000 quetzales (replacing the former amounts of 250 to 5,000 quetzales). The Government adds that in 2003 the courts registered no instances of failure to comply with court decisions ordering reinstatement. The Committee requests the Government to keep it informed of instances of failure to comply with reinstatement orders.

2. Tardiness of the procedure to impose penalties for breach of labour legislation, particularly in the event of complaints for breach of trade union rights (according to the ICFTU some cases have taken five years to process). The Government states that in May 2003, it sent several Bills to the Congress of the Republic to amend the Labour Code in order to speed up the processing of labour cases by introducing improvements, which the Government lists (oral proceedings, concentration of procedures, cautionary measures in favour of workers, a two-month deadline for the holding of hearings, etc.). The Government hopes that positive results will be achieved with these Bills before the end of 2003. The Committee requests the Government to keep it informed in this regard.

3. Information requested by the Committee on the procedure for consultation and negotiation in the public sector (Legislative Decree No. 35-96). Comments by FENASTEG on the denial of the right to collective bargaining for state workers, through the failure to include the necessary funds in the general state budget. The Committee notes that according to the Government, since 2002, 16 collective agreements have been concluded in state bodies (including ministries and municipalities), and that the legislation requires collective bargaining in such bodies to take place before the approval of the budget. The Government adds that the bargaining is conducted either directly or through judicial channels, in which case, the judicial authority may order the bargaining.

4. Government Agreement No. 60-2002, which according to the CGTG, restricts collective bargaining by suspending in the public sector the grant of general wage increments and other benefits. The Committee notes with interest the information in the Government’s report that the Constitutional Court has ruled that these restrictions to collective bargaining are unconstitutional.

5. The ICFTU’s comments on the non-existence of collective agreements in export processing zones. The Government states in its report that 22 collective agreements were approved in the private sector (two in enterprises in export processing zones); and that between 1998 and 2002, 129 collective agreements were approved in the private and public sectors. The Committee further notes that the Government has penalized enterprises in export processing zones which fail to comply with the labour legislation and, as required by the legislation, has so informed the Ministry of the Economy with a view to the cancellation of their entitlement to tariff benefits. The Government also states that the establishment of a high-level inter-institutional body is about to be approved and that it will comprise representatives of all state authorities having competence in matters relating to exports and export processing. Noting how few collective agreements exist in export processing zones, the Committee requests the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment, by means of collective agreements, in enterprises in the export processing zones, and to provide information in its next report on any new collective agreements concluded in this sector.

6. The UGT’s comment that one-third of municipal trade union leaders have been removed from office by mayors. The Committee requests the Government to reply to these comments.

7. UNSITRAGUA’s recent comments of 17 July, 25 August and 1 September 2003 and comments of 18 October 2001 by the World Confederation of Labour (WCL). The Committee requests the Government to send its response to the above comments.

8. The Committee notes that the Government has agreed to the sending of a direct contacts mission, and expresses the hope that the mission will be carried out in the very near future.