Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee recalls that for many years it has been referring to the following problems of serious restrictions on the exercise of trade union rights in practice:

• – the excessive delays in procedures for the reinstatement of trade unionists in accordance with rulings by judicial bodies and the utilization of amparo proceedings (for the protection of constitutional rights); this is a general problem and the Committee has received information concerning an average of three years between the preliminary hearing and the trial, which may last for between six and seven years;
• – the failure to comply with orders for the reinstatement of dismissed trade unionists;
• – the slowness and ineffectiveness of procedures to impose penalties for breaches of labour legislation;
• – the need to promote collective bargaining, especially in the maquila sector.

The Committee previously also requested information on the Bill on Civil Service Reform (this question is now dealt with in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).

With reference to these matters, in its previous observation, the Committee noted that, under the auspices of the high-level mission in 2008, the Tripartite Commission concluded an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, with the agreement calling for an examination to be carried out of the dysfunctions of the current labour relations system (excessive delays and procedural abuses, lack of effective application of the law and of penalties, etc.), and in particular of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as set forth in Conventions Nos 87 and 98 in the light of the technical considerations and substantive and procedural comments of the Committee of Experts.

The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Union Unity of Guatemala (CUSG) in a communication dated 29 August 2011 (in relation to which, the Government’s reply refers to imprecise and false indications) and on the trade union membership of certain alleged victims, as well as the comments of the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in a communication dated 30 August 2011. The Committee further notes the communication of the International Trade Union Confederation (ITUC), dated 4 August 2011, which emphasizes that violations of the Convention occur in both the public and private sectors and include pressure to renounce trade union membership and dismissals as a result of the establishment of unions.

The Committee notes that the communications of the ITUC and the MSICG confirm that the problems referred to above continue at the present time. The Committee observes that the communications of the trade union confederations referred to above emphasize the lack of political will by the Government to resolve the outstanding problems despite the many ILO missions and the fact that year after year the Government is called upon to appear before the Conference Committee on the Application of Standards, where backward steps are noted, as they are in many cases by the Committee on Freedom of Association. The trade union confederations emphasize that the supervisory bodies have indicated that the situation with regard to trade union rights continues to be serious and a cause for concern, and that judicial delays have increased despite the rise in the number of tribunals. They add that non-compliance with court reinstatement orders continues and that the courts do not discharge their functions adequately in relation to the exercise of the right to collective bargaining when trade unions bring legal action. The national trade union confederations provide details of hundreds of cases of anti-union dismissals, as well as many cases of court reinstatement orders which are not given effect. The ITUC links these problems with the climate of violence suffered by trade union leaders.

The Committee notes the Government’s indication that the matters raised by the Committee have been discussed in the National Tripartite Commission for years and that tripartite consensus has been reached on some of them, including with regard to certain reforms. Moreover, according to the Government’s indications, the Tripartite Commission has reactivated subcommissions to follow up the various pending issues. The Committee notes the Government’s indication that the subject of legal reforms is currently under analysis with a view to reactivating the relevant proposals, and for this purpose an integrated commission is operating under the terms of Government Decisions Nos 158-2011 and 246 2011.

The Committee notes the Government’s indication in its report that the labour and social welfare tribunals and chambers discharge the functions assigned to them by Decree No. 1441 issuing the Labour Code (statistical data are attached). With regard to the Committee’s comments concerning the “abuse of amparo and appeal procedures”, the Government indicates that the use made of both procedures is at the exclusive discretion of the parties to procedures relating to labour and social welfare disputes, and that the judiciary cannot deny the constitutional procedure of amparo as, in accordance with the corresponding constitutional provisions, “no subjects may not be covered by amparo”. With regard to the failure to comply with orders to reinstate dismissed trade unionists, the Government indicates that in such cases those concerned have to inform and take action in the labour courts to claim the appropriate legal remedies. With reference to the slowness and ineffectiveness of procedures relating to sanctions for violations of labour legislation, the Government indicates that the General Labour Inspectorate, through the Legal Advisory Section, during the course of 2010 and within the time limits set out by law, filed 1,848 charges with labour and social welfare tribunals against individuals or associations as a result of labour inspections, in which there were found to be certain violations of the legal provisions in force in the country, both in terms of domestic law and those relating to international Conventions, with the total amount of fines imposed for such violations amounting to 2,378,761.63 quetzales. The Government adds that the practice of referring cases of non-compliance to the labour and social welfare tribunals is linked to the fact that in 2004 the Constitutional Court found it unconstitutional for the General Labour Inspectorate to impose administrative financial sanctions on all employers who were in breach of legal provisions. This lack of legal means of enforcement removed from the General Labour Inspectorate its power to enforce compliance with the law, for which reason it is now necessary to pursue violations through judicial procedures. The Committee indicates that in 2011 there were 57 administrative complaints of violations of freedom of association and collective bargaining (there were 55 in 2010 and 145 in 2008). The Committee regrets that the Government has not provided statistical data on the duration of legal procedures and the sanctions applied for anti-union acts. It requests the Government to provide specific information on these matters. With regard to the need to promote collective bargaining, especially in the maquila sector, the Government indicates that there has been a rise, based on the guarantees of freedom of association set out in the Constitution, in the application of ILO Conventions on freedom of association and collective bargaining and that there are currently 11 unions in the maquila sector.

The Committee expresses concern at the various cases that are before the Committee on Freedom of Association in relation to these matters and also at the very high number of allegations of anti-union dismissals (hundreds in many public institutions and certain private enterprises, according to the trade union confederations) and acts contrary to the right to collective bargaining referred to by the ITUC and MSICG.

Recalling once again that all of the problems raised are very serious, the successive ILO high-level missions, including the most recent in May 2011, the Committee requests the Government, in consultation with the most representative organizations of workers and employers, to undertake the necessary procedural and substantive reforms to: (1) resolve cases of anti-union discrimination and the slowness of the labour courts (including more effective and rapid proceedings and more dissuasive penalties); (2) promote collective bargaining in view of the worrying figures for the collective accords that are in force (according to the Government, 58 collective accords were concluded between 2008 and 2009, as in Guatemala collective bargaining tends to take place at the level of the enterprise or public institution); and (3) adopt additional measures to improve labour inspection (since, according to the Government, it has not been possible to appoint all of the envisaged new inspectors) and to enable the courts to enforce rulings without delay. The Committee requests the Government to provide information in this regard and hopes to be able to note significant progress in the near future.

The Committee notes the Government’s indication that 64 new unions and 33 new collective labour accords have recently been registered. Taking into account the lower number of collective accords in the private sector, the Committee requests the Government to promote collective bargaining and to continue to provide information on the number of unions and collective accords, the number of members and of complaints submitted in 2010 and 2011 to the labour inspection services concerning violations of trade union rights. The Committee also requests the Government to provide its observation on the allegations by the MSICG that 444 unions do not currently have a collective accord.

In view of the delicate situation relating to the application of the Convention, the Committee expresses the firm hope that the Government and the authorities in general will include compliance with the Convention among their highest priorities.