Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations from the International Trade Union Confederation (ITUC), received on 1 September 2014, and from the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2014, which refer to subjects examined by the Committee and in particular to numerous acts of anti-union discrimination regarding which there is a lack of adequate protection from the public authorities.

The Committee also notes the joint observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the International Organisation of Employers (IOE), received on 28 August 2014, in which the organizations express particular appreciation for the establishment of the Committee for the Settlement of Disputes relating to Freedom of Association and Collective Bargaining.

The Committee recalls that a number of delegates to the 101st Session (June 2012) of the International Labour Conference submitted a complaint, under article 26 of the ILO Constitution, concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that, as part of considering whether to appoint a commission of inquiry to examine the complaint (a question that will be considered again by the Governing Body at its 323rd Session (March 2015)), an ILO high-level tripartite mission visited the country in September 2013 and some of its conclusions refer to the capacity of the labour inspectorate and the judiciary to ensure adequate protection against anti-union discrimination. The Committee also observes that the Government, with a view to implementing the conclusions of the high level tripartite mission, adopted a “roadmap” in October 2013 in consultation with the social partners in Guatemala, the content of which is related to the application of the Convention. The Committee also takes note of the mission of the Office that took place from 8–11 September 2014 in relation to the follow-up to the roadmap.

Article 1 of the Convention. Protection against anti-union discrimination. Effective judicial proceedings. In its previous comments the Committee had requested the Government to push through the necessary procedural and substantive reforms to deal with anti-union discrimination and the slowness of the labour justice system, including more effective and rapid proceedings and more dissuasive penalties. In this respect, the Committee notes that the trade union organizations continue to report significant judicial delays with regard to anti-union acts, due in particular to the possibility of filing multiple appeals with a delaying effect. The MSICG also denounces the judicial practice of processing unlawful dismissals of trade union officers through normal legal channels, which means that reinstatement is only effective when it has been confirmed by the Appeals Court, a procedure which can take years. Moreover, the Committee notes the statement by CACIF that 98 per cent of labour courts in the country have a system of oral proceedings which has speeded up hearings. The Committee further notes that the Government provides general statistics on the length of labour court cases but does not supply specific data on the length of proceedings for acts of anti-union discrimination and, in particular, it does not indicate the average time taken for a reinstatement to be ordered and implemented. Lastly, the Committee observes that several cases are pending before the Committee on Freedom of Association relating to the situation of many workers dismissed on trade union grounds who have been waiting years for reinstatement orders handed down by the first instance court to be examined by the Appeals Court. In view of the above situation and the undertakings made by the Government in the context of the “roadmap”, the Committee, while noting the steps being taken to speed up the system of labour justice, requests the Government to take the necessary steps to significantly reduce the time taken by the justice system to effect reinstatements. The Committee requests the Government to provide information on any developments in this respect.

The Committee also recalls that it has been asking the Government for many years to take the necessary steps to put an end to the widespread non-compliance with orders for the reinstatement of dismissed trade unionists and that this request forms part of the conclusions of the ILO high-level tripartite mission conducted in 2013. In this respect, the Committee notes the Government’s indications that: (i) Agreement No. 26-2012 establishes the verification unit in the judiciary for monitoring compliance with all labour court rulings; (ii) General Instruction No. 05-2013 of the Chief Public Prosecutor provides for criminal prosecution of contempt of court in relation to non-compliance with labour court rulings; (iii) a total of 663 reinstatements were effected in 2014, compared with 60 in 2010; and (iv) 477 cases of refusal to comply with labour court rulings were examined by the Public Prosecutor’s Office, 53 of them were transferred to the courts, resulting in three convictions, while a hearing date has to be fixed for 33 cases. In addition, the Committee notes that: (i) CACIF commends the work of the reinstatement verification unit and the adoption of special judicial proceedings for labour cases; (ii) the trade union federations point out that Ministry of Labour statistics show that 277 final reinstatement orders have not been implemented and that in the other 402 cases the reinstated workers have not been paid their outstanding wages. In view of the above, while duly noting the initiatives taken to tackle non-compliance with rulings ordering the reinstatement of dismissed trade unionists, the Committee requests the Government to significantly increase resources to effectively eliminate these defects and ensure compliance with judicial decisions. The Committee requests the Government to provide information on any developments in this respect and on the results achieved.

Effective action by the labour inspectorate. In its previous comments, in view of the serious problems of anti-union discrimination, the Committee had asked the Government to adopt additional measures to improve labour inspection. The Committee observes that the high-level tripartite mission, in its conclusions, expressed concern at the impossibility for the labour inspectorate to impose administrative penalties and considered that legislative reforms should be adopted urgently to enable the labour inspectorate to discharge its mandate of enforcing the labour legislation. The Committee notes the Government’s indication that: (i) since 2012, the labour inspectorate has been strengthened by the recruitment of 100 additional inspectors and the reorganization and modernization of its departments; and (ii) the Government brought Bill No. 4703 before the National Congress, legislation which grants the judiciary powers to impose penalties and already has the favourable opinion of the Labour Commission of Congress. In addition, the Committee notes that: (i) the workers’ organizations consider that granting the labour inspectorate the power to impose penalties is a prerequisite for effective action against anti-union discrimination; and (ii) CACIF considers that Bill No. 47803 is appropriate, especially as it reflects the position of the Constitutional Court concerning the unconstitutional nature of the labour inspectorate’s power to impose penalties. The Committee therefore requests the Government to take the necessary steps to ensure that the current legislative reform process results in greater effectiveness and speed in the imposition of dissuasive penalties for acts of anti-union discrimination. The Committee requests the Government provide information on any developments in this respect and to indicate the number of penalties imposed for anti-union acts, including the amounts of fines.

Article 4. Promotion of collective bargaining. In its previous comments the Committee noted the low number of collective agreements in the private sector. The Committee notes the Government’s indication that a total of 80 collective agreements were approved from 2011 to May 2014 but no collective agreement has been approved in the maquila (export processing) sector since 2013. The Committee observes that the rate of approval of collective agreements is still decreasing and notes with concern the very low number of collective agreements and the lack of collective bargaining in the maquila sector since 2013. Observing that, in the context of the roadmap, the Government has undertaken to launch a major national campaign to raise awareness of freedom of association, the Committee requests the Government to make use of this campaign to actively promote mechanisms for collective bargaining, giving special attention to the maquila sector. The Committee requests the Government to provide information on the action taken and the results achieved.

Application of the Convention in practice. The Committee welcomes the establishment of the Committee for the Settlement of Disputes relating to Freedom of Association and Collective Bargaining, which was set up in the context of implementation of the roadmap with the assistance of the Special Representative of the ILO Director-General in Guatemala. The Committee trusts that this body, which is of a tripartite nature and is directed by an independent mediator, will contribute towards settling the numerous cases of anti-union discrimination and obstruction of collective bargaining reported by the trade union organizations, and requests the Government to provide information on the results achieved. Lastly, the Committee notes with concern the large number of violations of the Convention within the municipalities indicated by various reports. The Committee requests the Government to take the necessary steps to ensure the application of the Convention in the municipalities and to provide information on the results achieved.