Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in June 2005 and the various cases currently before the Committee on Freedom of Association.

The Committee notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA) and the National State Union Workers’ Federation (FENASTEG). The Committee notes that UNSITRAGUA’s comments refer to the Government’s statements in its report of 2004 (for example, concerning the functions of the labour inspectorate, the declaration of strikes as being unlawful, the establishment of trade unions in export processing industries (maquila), procedures for the registration of trade union organizations, etc.) and that it also refers to acts of interference by the Government in trade union affairs on a ranch and in a sugar processing plant. The Committee suggests that the general matters raised by UNSITRAGUA could be examined in the National Tripartite Committee and that the specific acts of interference by the Government in trade union affairs could be examined in the framework of the rapid intervention mechanism to examine complaints concerning violations of trade union rights, established following the direct contacts mission in 2004 and which, according to the Government, has begun to be operational. The Committee therefore requests that the Government and UNSITRAGUA examine these matters in the above bodies.

With regard to the comments by UNSITRAGUA and FENASTEG criticizing a Civil Service Bill (the trade union organizations indicate that, among other violations of labour rights, the percentage required to establish trade unions is too high, restrictions are placed on the exercise of the right to strike, etc.), the Committee notes the Government’s indication that the Bill is still at the consultation stage and it will be discussed with various institutions, including trade union organizations. Under these conditions, the Committee hopes that the Bill which emerges from the consultation process will be in full conformity with the provisions of the Convention and asks the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.

The Committee also notes the comments on the application of the Convention made by the World Confederation of Labour (WCL), referring to matters already raised by the Committee.

1.        Acts of violence against trade unionists

The Committee notes the Government’s comments on this subject, and particularly that: (1) it recognizes that there is an institutional weakness relating to the investigation of any crime committed in Guatemala and that, although acts of violence have clearly decreased considerably, it is evidently disturbing that the investigations have not been completed, for which reason the Government is making efforts to ensure that the Office of the Public Prosecutor completes the investigations; (2) it is considered important to discuss a mechanism to protect trade unionists, as recommended by the direct contacts mission in 2004, but it has to be emphasized that everyone requires protection, and particularly those working to enforce justice, and as the process of adapting the programme that is to be implemented for the latter is nearing completion, the programme for the protection of trade unionists is now being given priority; and (3) following the complaints made by workers’ representatives in the Tripartite Committee on International Labour Affairs, the competent bodies have been directed to investigate them and to provide protection to the persons under threat.

The Committee expresses deep concern at the acts of violence against trade union leaders and members which, according to the Government, continue to be reported. The Committee emphasizes that trade union rights can only be exercised in a climate that is free of violence and expresses the sincere hope that the protection mechanism for trade unionists will become operational in the near future. It also requests that the Government provide information in its next report on any developments in this respect. The Committee trusts that the Government will make every effort to ensure full respect for the human rights of trade unionists.

2.        Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which in particular allows inspections without prior notice;

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of the voters, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86).

The Committee notes the Government’s indication that the representatives of employers and workers are analysing all the legal reforms with a view to resolving: the problems arising in relation to the reform initiatives of 2003; the shortcomings in the penal legislation which are in violation of freedom of association; all the aspects of Conventions Nos. 87 and 98; the provisions setting out the requirements to hold office on trade union executive committees; the substantive and procedural reforms, the legal criteria to establish the majority of votes required to call a strike and clarification of the legal definition of essential services in relation to the exercise of the right to strike.

The Committee also notes the Government’s indication in this respect that: (1) due to the importance of submitting a proposed reform of the Labour Code, meetings of the Tripartite Committee on International Labour Affairs (CTAIT) are held every week and the reform is the only item on the agenda; (2) meetings have been held between the CTAIT and the Labour Commission of the Congress, in which the importance has been acknowledged of making reform proposals which are supported by tripartite consensus, for which purpose joint work is being carried out; and (3) many subjects on which the Committee of Experts suggested legislative changes are problems of interpretation because the constitutional principle is applicable that, in the event of conflicts of labour law, the most favourable provision for workers prevails, as a result of which many of the problems raised have already been resolved as subsequent legislation, irrespective of its source or hierarchical rank, has superseded the legal provisions identified as being problematic by the Committee (the Government indicates that this is the case of Government Agreement No. 700-2003 respecting essential public services in which compulsory arbitration can be imposed, on which the Committee had commented).

Under these conditions, noting that the Government and the social partners have embarked upon a process of analysis with a view to carrying out the required amendments of the legislation to bring it into conformity with the Convention, the Committee hopes that the necessary legislative reforms will be undertaken in the near future and that, in order to avoid any possible ambiguity, those provisions which have been superseded by subsequent laws will also be repealed. The Committee requests the Government to provide information in its next report on any developments in this respect.

3.        Other matters

In its previous observation, with reference to the exercise of trade union rights in the export processing industry, the Committee requested the Government to provide information on any complaint relating to the exercise of trade union rights in this sector, the corresponding administrative or judicial decisions and the manner in which compliance with the rights laid down by the Convention is secured in that sector. The Committee notes from the Government’s report that: (1) with reference to the various investigations that have been commenced, when the general labour inspectorate has made comments, employers have guaranteed compliance with the minimum rights of workers and in some cases of failure to comply with labour provisions administrative action has been taken to impose a penalty on the employer for breach of labour law; (2) at the present time, following a ruling by the Constitutional Court, inspectors are not empowered to adopt administrative measures or to impose fines, for which reason complaints are made to labour tribunals so that they can impose penalties for violations of labour laws; (3) in the context of monitoring and inspection to enforce compliance with labour laws, labour inspectors have taken action and have warned employers to comply with certain legal requirements, following complaints; and (4) cooperation and support has been requested from the ILO Office in San José in Costa Rica for the holding of the first national seminar on labour rights and freedom of association in export processing industries, which is due to be held soon. Under these conditions, while recalling that the Government gave assurances to the direct contacts mission in 2004 that the tripartite seminar on the general issue of compliance with trade union rights in export processing industries would envisage a plan of action to be evaluated as part of the follow-up activities, the Committee requests the Government to continue making efforts to ensure compliance in this sector with the rights set forth in the Convention. The Committee also asks the Government to provide information in its next report on any complaints made in export processing industries of violations of trade union rights over the past two years, and their outcome.

Finally, the Committee notes that UNSITRAGUA and the International Confederation of Free Trade Unions (ICFTU) recently sent comments on the application of the Convention. The Committee requests that the Government provide its observations thereon.