Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 and 4 September 2017, and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 August 2017. The Committee notes that these observations refer to issues examined in the present comment and to complaints of violations in practice regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), both received on 1 September 2017, which refer to matters examined by the Committee in the present comment.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

The Committee notes in particular that the Governing Body, at its 331st Session (October–November 2017), welcomed the agreement reached by the Guatemalan tripartite constituents on 2 November 2017 in order to achieve the full implementation of the roadmap adopted in October 2013 and thereby resolve the matters raised in the complaint submitted under article 26 of the ILO Constitution by various Worker delegates to the 101st Session of the International Labour Conference (May–June 2012) concerning non-observance of the Convention by Guatemala. The Committee notes that, on the basis of the foregoing, the Governing Body: (i) urged the Government, together with the Guatemalan social partners and with the technical assistance of the Office and of its representative in Guatemala, to devote all the efforts and resources needed to implement the national tripartite agreement aimed at settling the unresolved matters in the roadmap; and (ii) deferred until its 332nd Session (March 2018) the decision on the appointment of a Commission of Inquiry.

The Committee notes with interest that the tripartite agreement provides for: (i) the establishment of a Tripartite National Committee on Labour Relations and Freedom of Association responsible, inter alia, for guiding the actions necessary for implementation of the roadmap; and (ii) by March 2018, the presentation to the National Congress, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2017 on the application of the Convention by Guatemala. The Committee notes in particular that the Conference Committee requested the Government to: (i) continue to investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to identifying and understanding the root causes of violence, understanding whether trade union activities was a motive, determining responsibilities and punishing the perpetrators; (ii) continue to strengthen the operation of the Conflict Resolution Committee, including in relation to the complementarity between the Conflict Resolution Committee and the judicial mechanisms for the protection of freedom of association; (iii) eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the Director General, review the handling of registration applications; (iv) continue to provide rapid and effective protection to all trade union leaders and members who are under threat so as to ensure that protected individuals do not personally have to bear any costs arising from those schemes; (v) ensure the effective operation of the Special Investigation Unit for Crimes against Trade Unionists of the Public Prosecutor’s Office by allocating the necessary resources; (vi) increase the visibility of the awareness-raising campaign on freedom of association in the mass media and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector; (vii) continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners; and (viii) continue to engage with the Special Representative of the Director-General in Guatemala in pursuing the implementation of the Memorandum of Understanding and the roadmap.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes the information provided by the Government, both in its report on the application of the present Convention and in its report of October 2017 to the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution. The Committee takes special note of the Government’s indication that: (i) with regard to the 89 recorded murders of trade union leaders and members, 21 verdicts have been issued to date (16 convictions, four acquittals and one judgment imposing security measures); (ii) of these 21 verdicts, five were issued in 2017; (iii) three convictions recently secured by the Public Prosecutor’s Office were handed down by courts for high-risk proceedings, including those involving offences against trade unionists’ life, further to a decision of the Criminal Chamber; (iv) in addition to the rulings handed down, significant progress has been made in investigations or proceedings relating to another five murders and one attempted murder, including the killing of Mr Tomás Francisco Ochoa Salazar, Disputes Secretary of the SITRABREMEN trade union organization, which occurred on 1 September 2017; (v) through the coordinated action of the Special Unit at the Public Prosecutor’s Office for the Investigation of Crimes against Trade Unionists (Special Investigation Unit) and the Office of the Deputy Minister for Security at the Ministry of the Interior; three arrest warrants were issued and a fourth person was summoned to make an initial statement; (vi) collaboration is ongoing with the International Commission against Impunity in Guatemala (CICIG) in relation to the investigation of a list of 12 murders compiled by the trade union movement; (vii) the Trade Union Committee at the Public Prosecutor’s Office continues to function; (viii) Directive No. 1-2015 of the Public Prosecutor’s Office has been applied in every case of anti-union violence resolved since 2015 and all the investigation files record steps taken to establish any trade union involvement of the victims; and (ix) the abovementioned Special Investigation Unit has been restructured and now comprises 19 persons and three inspection departments (one dealing with investigations into violent deaths and two dealing with non-compliance with judicial orders for reinstatement).

The Committee also notes the information provided by the Government concerning protection measures for members of the trade union movement at risk. The Government indicates that: (i) all requests for protection measures for members of the trade union movement received by the Ministry of the Interior give rise to a risk assessment; (ii) on the basis of such studies, 28 security measures covering specific locations and two personal security measures were granted between January and July 2017; and (iii) the Protocol for the implementation of immediate and preventive security measures for trade union members, union leaders and labour rights advocates was adopted and published, the content having been agreed upon by the trade unions.

The Committee also notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, and also the ITUC, in their observations on the application of the present Convention and in their report of October 2017 to the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution, report: (i) the persistence of numerous attacks and threats against members of the trade union movement; (ii) a lack of tangible progress with regard to the investigation of the 89 murders of trade unionists and the securing of convictions for the perpetrators; (iii) serious methodological defects in the investigation conducted by the Public Prosecutor’s Office and, in particular, failure to take account of the trade union activities of the victims when investigating the motives for the murders; (iv) minimal attention given to identifying the instigators of the offences; (v) a persistent lack of human and financial resources for the Special Investigation Unit; and (vi) apart from the murder cases, a lack of investigation, let alone any imposition of penalties, regarding other anti-union criminal acts.

The Committee also notes with deep concern that the abovementioned trade union organizations specifically report: (i) the murder on 9 November 2016 of Mr Eliseo Villatoro Cardona, leader of the Union of Organized Municipal Employees of Tiquisate (SEMOT), an organization affiliated to the Guatemalan Union, Indigenous and Peasant Movement (MSICG), after SEMOT had received numerous threats from the municipal authorities; (ii) the killing on 23 June 2017, by a security guard at a ranch in Coatepeque, of Mr Eugenio López, aged 72, during a peaceful demonstration of current and former ranch workers to demand the payment of their employment benefits; and (iii) the murder on 1 September 2017 of Mr Tomás Francisco Ochoa Salazar, Disputes Secretary of the SITRABREMEN union, in a climate of bullying and harassment of the members of that union. Lastly, the Committee notes the 2016 annual report of the Human Rights Procurator’s Office of Guatemala, indicating that 30 attacks on trade unionists were recorded between January and November 2016.

The Committee deplores that there persist numerous allegations of acts of anti-union violence and further murders of trade union leaders and members. While taking due note of the five judgments handed down in 2017 in relation to murders of members of the trade union movement, the Committee notes with regret the continuing impunity in the vast majority of cases of recorded murders of trade unionists. In the same way as the Committee on Freedom of Association in the context of Case No. 2609 (382nd Report, paragraphs 315–353), the Committee once again expresses its particular concern at the lack of progress in the investigations of murders in which evidence has already been found of a possible anti-union motive. In light of the above, the Committee firmly urges the Government to intensify its efforts to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. In particular, the Committee urges the Government, as part of the implementation of the tripartite agreement of November 2017, to intensify its efforts to: (i) allocate additional financial and human resources to the Special Unit at the Public Prosecutor’s Office for the Investigation of Crimes against Trade Unionists; (ii) increase the collaboration initiated between the Public Prosecutor’s Office and the CICIG; (iii) invest additional effort and resources in investigations into murder cases where possible anti-union motives have already been identified; (iv) examine in the courts for high-risk proceedings a greater number of murders of trade unionists; and (v) increase the budget allocated to protection schemes for trade unionists. The Committee requests the Government to continue providing information on all the measures adopted and the results achieved in this respect. As regards the alleged absence of investigations and penalties regarding anti-union offences that do not involve physical violence, the Committee requests the Government to conduct an assessment with the competent authorities into the adequacy of existing criminal legislation.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non essential services and establishes other obstacles to the right to strike;
• -and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been asking the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous observation, the Committee noted with interest various aspects of Bill No. 5199 and observed that certain comments of the Committee were not being taken into consideration in the aforementioned Bill. The Committee notes that, with support from the Representative of the Director-General in Guatemala, bipartite discussions have been held throughout 2017 between the employers and workers, resulting in: (i) a consensus on the reform of the provisions of the Penal Code relating to strikes, on which the Committee has been commenting for many years; and (ii) on a bipartite request for Bill No. 5199 to be withdrawn from the National Congress to enable the social partners to reach further agreements on the content of the text.

The Committee further observes that the tripartite agreement signed in November 2017 provides for the presentation to the National Congress by March 2018, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention. The Committee notes with interest that the agreement refers specifically to the following matters on which tripartite consensus will be sought to amend the legislation: (i) the application of the labour legislation to temporary contracts and special regimes in the public sector; (ii) the mechanisms and requirements applicable to sectoral collective bargaining covering, inter alia, the thresholds for the establishment of sectoral trade union organizations, the right to engage in collective bargaining, and the identification of the most representative organization; (iii) the rules applicable to strike votes; and (iv) the determination of the list of essential services.

Recalling that the Government and the social partners may seek technical assistance from the Office to support them in amending the legislation, the Committee expects that the Government will soon be in a position to report the adoption of legislation which fully complies with the obligations contained in the Convention.

Application of the Convention in practice

Registration of trade unions. In its previous comment, the Committee asked the Government to pursue, with the technical assistance of the Office, more in depth dialogue with the trade unions on the reform of the registration procedure and to continue providing information on the number of registrations requested and those recorded. According to the information supplied by the Government in its report, and in the other reports to the Governing Body, from 1 January to 31 October 2017, a total of 61 trade unions were recorded in the public trade union register, while three applications were rejected for failure to observe the statutory time limits. While noting the indication that the Ministry of Labour is making adjustments to the electronic version of the trade union register, the Committee observes that the Government has not provided any new information on the reform of the registration procedure to indicate that account is being taken of the criticism which the trade unions have been expressing for many years and which has given rise to the presentation of a number of complaints examined by the Committee on Freedom of Association. The Committee emphasizes that the trade unions object, inter alia, to excessive delays in the registration process, which facilitate the dismissal of union founder members. The Committee expects that the implementation of the tripartite agreement of November 2017 will help to give fresh impetus to the dialogue between the Government and the trade unions to revise and accelerate the trade union registration process. The Committee requests the Government to provide information on all progress made in this respect.

Settlement of disputes relating to freedom of association and collective bargaining

In its previous comment, the Committee asked the Government to evaluate the terms of reference and operation of the Committee for the Settlement of Disputes (Conflict Resolution Committee) relating to freedom of association and collective bargaining (hereinafter Dispute Settlement Committee) with a view to reinforcing the effectiveness and impact of that body. In this regard, the Committee refers to its observation on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Awareness-raising campaign on freedom of association and collective bargaining

In its previous comments, the Committee underlined the need for wide dissemination in the national mass media of the awareness-raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office as part of the implementation of the roadmap. The Committee notes the Government’s indications that: (i) the campaign on freedom of association and collective bargaining continues to be disseminated through the social media networks of government institutions; (ii) interviews were conducted with the labour and social welfare authorities via various government communication media; (iii) an awareness-raising workshop for journalists and opinion-formers and a similar seminar for the communication directors of the three state authorities were held; and (iv) on 31 August and 1 September 2017, campaign posters were inserted in two high-circulation newspapers. The Committee also notes that the CACIF refers to the organization, with support from the Representative of the ILO Director-General in Guatemala, of two awareness-raising activities on sustainable enterprises and fundamental rights at work, one for agriculture and the other for the maquila (export processing) sector. Lastly, the Committee notes that the trade unions in Guatemala, in their report of October 2017 to the Governing Body as part of the follow-up to the article 26 complaint, express regret once again that the awareness-raising campaign is limited to the official media, which have little impact on the general public, and that at the same time there is an aggressive campaign in leading media outlets against trade union activity and collective bargaining, especially in the public sector. Observing that the signing of the tripartite agreement in November 2017 and the establishment of the Tripartite National Committee on Labour Relations and Freedom of Association provide a major opportunity in this respect, the Committee urges the Government once again to take the necessary steps, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media, beyond the official media. The Committee requests the Government to provide information on all progress made in this respect.

The maquila sector. The Committee refers to its observation on the application of Convention No. 98.

The Committee hopes that the implementation of the tripartite agreement of November 2017 will create the required impetus for the Government, with the participation of the social partners and technical assistance from the Office, to take the necessary steps to remedy the grave violations of the Convention which have been observed by the Committee for many years.

[The Committee requests the Government to reply in full to the present comments in 2018.]