Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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 which took place in the Conference Committee on the Application of Standards in 2008 and the various cases currently before the Committee on Freedom of Association (some of which relate to serious allegations of violence against trade union leaders and trade unionists). The Committee also notes the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission designed to improve the application of the Convention.

The Committee also notes the detailed comments on the application of the Convention made by the Union Movement, Guatemalan Indigenous and Agricultural Workers for the Defence of Workers’ Rights in a communication dated 31 August 2008, as well as the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which refer to matters already raised by the Committee, as well as to serious acts of violence against trade union leaders and trade unionists, impediments to the registration of trade union organizations, difficulties in exercising the right of assembly of trade union organizations and other violations of the Convention. In this regard, the Committee hopes that, in the context of the tripartite agreement concluded during the high-level mission, all the questions raised, as well as the comments made by the ITUC in 2005 and by the Trade Union Confederation of Guatemala (UNSITRAGUA) in 2006, will be examined and tackled in a tripartite manner by the Government and the social partners in the context of the work of the Tripartite Committee on International Affairs, the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence against trade unionists

The Committee recalls that for several years, it has noted in its observations acts of violence against trade unionists and has previously requested the Government to provide information on developments in this regard. The Committee notes that the Government indicates in its report that: (1) it shares the Committee’s concern with regard to the acts of violence which, in its view, affect not only people involved in trade union activities, but also society in general; (2) it hopes that, in the medium term, it will be possible to reduce the crime rate through the development of strategies to strengthen civil intelligence systems, so that the perpetrators of crimes can be identified, tried and convicted; (3) a new Attorney-General and Head of the Office of the Public Prosecutor has recently taken up office and the Tripartite Committee on International Affairs has called on him to deal with the issue of acts of violence against trade unionists and the need to track down, prosecute and convict the perpetrators of these acts; and (4) the intention of the members of the Tripartite Committee is to achieve closely coordinated links with the Office of the Public Prosecutor in order to facilitate the provision of effective security measures for those members of the trade union movement who are the victims of intimidation or threats.

The Committee notes the conclusions of the high-level mission, in particular, with reference to the issue of human rights in trade union circles, that: “the mission noted greater attention to this problem, which is reflected in the decision of the Office of the Public Prosecutor under the instruction of the Attorney-General to allocate greater budgetary resources to the Special Office for Offences against Journalists and Trade Unionists and to assign four new investigators to that area. Moreover, the progress that had been made in the investigation into the assassination of the Secretary-General of the Trade Union of Workers of Puerto Quetzal, Mr Pedro Zamora, in January 2007, which prompted a special ILO mission and action taken by the mission in March–April 2007. The investigations carried out have established that two individuals have been accused of the crime and a warrant for their arrest has been issued. It is also worth pointing out that, following an investigation, it was confirmed that the trade unionist Mr López Estrada, thought to have disappeared, was found safe and sound at his mother’s house in Puerto Barrios”.

Furthermore, the Committee notes that, at the proposal of the mission, the Tripartite Committee approved an agreement to eradicate violence, which provides for the carrying out of: “(1) an evaluation of institutional action, including the most recent, and particularly the special protection measures to prevent acts of violence against trade unionists under threat; and (2) an evaluation of the measures that are being taken (increases in budget allocations and in the number of investigators) to guarantee effective investigation with sufficient resources to permit the elucidation of the crimes against trade unionists and the identification of those responsible”.

In this respect, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and penalized in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

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. In this regard, the Committee notes that the Government indicates that: (1) the new Ministry of Labour authorities have initiated a process to significantly reduce the time required for the administrative processing of trade union authorizations; (2) the Directorate General of Labour had authorized 40 new trade unions as at August 2008; and (3) the speed with which pending applications for registration will be processed is dependent on how quickly the comments made by the technical bodies of the Ministry of Labour and Social Insurance to the representatives of the trade unions in the process of being established are taken into account;

–      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 as trade union leader, under sections 220 and 223 of the Labour Code);

–      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 those casting votes, 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);

–      Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes that the Government reports that the Bill has been withdrawn from discussion, since an inter-sectoral consultation committee was set up in July 2008 to come up with a Bill that is consistent with the needs of the sectors involved;

–      Situation of many workers in the public sector who do not benefit from trade union rights. These workers (who are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. The Committee notes that the members of the Supreme Court of Justice stated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize.

With regard to the matters above, the Committee notes that, at the proposal of the high-level mission, the Tripartite Committee approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, and that this agreement provides for “an examination of the dysfunctions of the current system of labour relations (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members as laid down in Conventions Nos 87 and 98 in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations”. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee takes note of the report of the first mission of the technical assistance (November 2008), which was a follow-up to the high-level mission (April 2008).

The Committee firmly hopes that with the technical assistance the Government is receiving, the Government will be able to provide information in its next report on a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector. In its previous observation, the Committee noted the comments made by trade union organizations referring to significant problems relating to trade union rights in export processing zones and requested the Government to take the necessary measures to give full effect to the Convention in export processing zones. The Committee notes that the Government reports that: (1) through its general labour inspectorate, the Ministry of Labour and Social Insurance has been addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Inspectorate’s Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector closed and in 2008, ten closed; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsperson; (4) there are ten trade unions in the sector with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is counting on technical support from the ILO.

In this regard, the Committee notes that, in its conclusions, the high-level mission points out the following on this matter: “… it is in this area, as well as in the area described in the previous paragraph, that we see the extent to which the problems identified during the 2007 mission persist. According to the Ministry of Labour and Social Insurance, there are seven collective agreements for the export processing sector, but only two of those are from 2007. The others date back to 2003 or earlier. With regard to trade union membership, according to the administrative authority, there are six trade unions with a total membership of 562 workers in the export processing sector, among almost 200,000 workers, but according to the executive board of the trade union movement, there are only two trade unions in this sector. Regardless of whichever information is accurate, what is certain is that there continues to be minimal trade union activity and collective bargaining in the export processing sector and problems in applying Conventions Nos 87 and 98”.

Under these circumstances, the Committee hopes that the Government will continue benefiting from technical assistance from the Office so that the Convention is given full effect in the export processing sector, and will continue providing information on this matter.

Tripartite national committee. In its previous observation, the Committee asked the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as the work of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee notes that the Government reports that: (1) it is satisfied with the development of the meetings of the Tripartite Committee, particularly with the effectiveness of the dialogue and the openness to analysis, discussion and recommendations arising from the meetings; (2) by August 2008, ten meetings had been held, in which subjects of relevance to employer-worker relations were discussed; (3) the impetus of the Tripartite Committee’s activities has absorbed functions covered by the Legal Reform Subcommittee and an analysis is currently being carried out in order to filter and prioritize the cases to be dealt with; (4) in the context of the mechanism for rapid intervention in cases, both the worker and the employer sectors of the Tripartite Committee have reported cases and, given the constant participation of the general labour inspector, those cases have been dealt with and results achieved, both in the agricultural sector and in the garment or export processing sector; and (5) in addition, the Deputy Minister of Labour has intervened directly in the cases brought to the attention of the Tripartite Committee, appearing in person in the places in which a dispute has arisen and mediating in order to find an appropriate solution to those cases. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Finally, the Committee observes that, in the context of the session of the International Labour Conference held in 2008, during the analysis of the application of the Convention by Guatemala, the Committee on the Application of Standards invited the Government to accept a mission made up of the Employer and Worker spokespersons to assist the Government in finding durable solutions to all of the above matters. The Committee notes with interest that the Government indicates in its report that it welcomes the invitation along with each and every mission which wishes, in good faith, to assist in overcoming the complex situations relating to freedom of association.

The Committee hopes that it will be able to note in the near future that significant progress has been made in the application of the Convention.