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

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

The Committee notes the Government’s report and the observations on the application of the Convention sent by the National Trade Union Federation of State Workers of Guatemala (FENASTEG), the Trade Union Confederation of Guatemala (UNSITRAGUA), the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL).

The problems referred to by the Committee relate to restrictions on the exercise of trade union rights in practice, as follows:

–      cases of failure to comply with court orders to reinstate dismissed trade union members;

–      tardiness of the procedure to impose penalties for breaches of the labour legislation (including violations of trade union rights), with some cases taking five years to process;

–      the need to promote trade union rights (particularly collective bargaining) in export processing zones (maquila enterprises) (where there are only two unions and appear to be only two collective agreements);

–      numerous anti-union dismissals; UNSITRAGUA has referred to a very high number of anti-union dismissals in the private sector and in the public sector; according to the Union of Guatemalan Workers (UGT), one-third of municipal trade union workers have been dismissed;

–      inadequate guarantees in the procedure for the termination of public servants (section 79 of the Civil Service Act; section 80 of its implementing regulation; Decree No. 35-96 amending Decree No. 71-68 of the Congress of the Republic and Government Order No. 564-98 of 26 August 1998);

–      violation of collective agreements (in over 60 per cent of cases, according to UNSITRAGUA);

–      the need for the Code of Labour Procedures to be the subject of in-depth consultations with the most representative organizations of workers and employers.

The Committee notes that, according to the Government: (1) it has sought ILO accompaniment for the first national seminar on labour and trade union rights in the maquila sector in response to an undertaking with the direct contacts mission held in May 2004, and has appointed five labour inspectors for the maquila sector; supervisory actions amount to 1,668 (visits) and 2,015 (conciliation); (2) the Code of Labour Procedures initiative in the Congress of the Republic has no support from any sector; (3) the rapid response mechanism recommended by the direct contacts mission to deal with complaints concerning trade union rights is now operational and five complaints are currently being processed; (4) all the points the Committee raised concerning the application of the Convention are being examined by the employers’ sector with a view to amending the legislation in order to overcome the problems; (5) the Ministry of Labour has asked the Congress of the Republic to consult with the National Tripartite Committee about the proposals for substantive and procedural provisions awaiting approval, and is doing its utmost to obtain the approval of Congress for the initiatives agreed to by the Tripartite Committee.

The Committee notes the observations sent by the trade unions to the effect that: (1) the new Civil Service Bill is inconsistent with the provisions of Convention No. 98 in many areas; (2) the Government has confirmed that there are two trade unions in the maquila sector with 53 members, but does not indicate the total number of workers in the sector, or express the membership of the two unions as a percentage of total workers or number of enterprises; (3) the Constitutional Court has recently declared null and void the system of penalties for breach of the labour law; (4) section 414 of the Penal Code (which deals with the offence of disobedience) provides for progressive fines for failure to comply with orders to reinstate dismissed workers, the penalty is a monetary one and of little significance in practice; (5) according to the figures supplied by the Government, only 17 per cent of the trade unions in operation (389) have managed to conclude collective agreements; (6) tardiness in proceedings for anti-union discrimination is a widespread problem that is causing systematic destruction of trade unions (the membership rate is less than 0.5 per cent of the economically active population) and there are delays of up to ten years; (7) there are numerous cases of dismissal for the formation of trade unions or for collective bargaining; (8) one-third of municipal trade union leaders have been dismissed by mayors, and labour inspectors refrain from intervening in labour disputes in municipalities. The abovementioned organizations cite numerous cases of anti-union discrimination in the public and private sectors and send copies of a number of reinstatement orders which have not been obeyed.

The Committee notes with regret that the problems it has been raising for years have not abated and that the measures taken to resolve them, particularly referral of the problems to the Tripartite Committee, have been unsuccessful. The Committee expresses its concern at this matter and urges the Government to take the necessary steps to bring its law and practice into conformity with the requirements of the Convention, and to keep the Committee informed.

With regard to the Bill on the reform of the Civil Service, the Committee notes the Government’s statement that it is still being discussed, inter alia, with the trade unions. In view of the concern expressed by the trade union organizations and their many objections to the Bill, the Committee requests the Government to make every effort to pursue dialogue with the abovementioned organizations and to ensure that the future law is not contrary to the provisions of the Convention.

The Committee reminds the Government that technical assistance from the Office is available to help to solve all the above problems.

[The Government is asked to supply full particulars to the Conference at its 95th Session and to reply in detail to the present comments in 2006.]