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

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

The Committee notes, respectively, the observations of the International Trade Union Confederation (ITUC), received in 2015 and on 1 September 2017, the joint observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, received on 30 August 2017, and the observations of the Trade Union’s Unity of Guatemala (CUSG), received in 2016. The Committee notes that the various trade union observations refer to matters examined in the present observation, as well as numerous allegations of acts of anti-union discrimination and obstacles to collective bargaining at the municipal level and in various multinational enterprises. The Committee requests the Government to provide its comments in this regard.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received in 2016 and on 1 September 2017, as well as the observations of the CACIF received in 2015, which refer to matters examined by the Committee in the present observation.

The Committee notes that, within the context of the examination by the Governing Body of the complaint made under article 26 of the ILO Constitution for non-compliance by Guatemala with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the tripartite constituents in the country signed an agreement on 2 November 2017 intended to resolve the matters covered by the complaint that were still to be settled. The Committee notes with interest that various aspects of the agreement which provides, among others, for the establishment of a Tripartite Committee on Industrial Relations and Freedom of Association, are relevant for the full application of the Convention.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Activities of the labour inspection services. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the current legislative reform process in relation to labour inspection results in greater effectiveness and speed in the imposition of dissuasive penalties for acts of anti-union discrimination. The Committee also requested the Government to indicate specifically the number of penalties imposed for anti-union acts and the amount of the fines.

The Committee notes the adoption of Legislative Decree No. 7/2017 (the Legislative Decree) published on 6 April 2017. The Committee notes with satisfaction that the Legislative Decree restores the power of the labour inspection services to impose penalties and welcomes the fact that the adoption of the Legislative Decree was preceded by dialogue between employers’ organizations and workers’ organizations which enabled them to achieve consensus on the content of the reform, which was largely taken up in the Legislative Decree adopted by Congress. While noting that the content of Legislative Decree is examined in the context of the supervision of the application of the Labour Inspection Convention, 1947 (No. 81), the Committee requests the Government to provide detailed information on the impact of the new Legislative Decree in relation to protection against acts of anti-union discrimination, as required by Article 1 of this Convention. In this regard, the Committee requests the Government to provide specific information on trends in the number of violations detected and penalties imposed by the labour inspection services for violations of trade union rights and the right to collective bargaining. Noting that the new Legislative Decree envisages a series of administrative and judicial remedies before administrative courts and complaint mechanisms which can be used in the event of the imposition of a penalty by the labour inspectorate, the Committee requests the Government to provide information on the duration of procedures before the penalties imposed by the labour inspection services in relation to collective rights become final and the compliance rate with these penalties.

Effective judicial proceedings. In previous comments, the Committee expressed deep concern at the persistent slowness of judicial procedures in relation to anti-union discrimination and the high level of non-compliance with reinstatement orders and it called for the adoption of the necessary measures, including legislative measures, to remedy this situation. The Committee also observes that the absence of adequate judicial protection in cases of anti-union discrimination is one of the elements of the complaint made under article 26 of the ILO Constitution in relation to Convention No. 87 and that, in the context of the Roadmap adopted in 2013 by the tripartite constituents of the country to resolve the matters raised in the complaint, the Government undertook to address this problem. The Committee notes, first, the statistical data provided by the Government. The Government indicates in particular that, between 1 January and 8 September 2017, a total of 1,721 applications were made for reinstatement in relation to collective disputes (1,589 cases in the public sector and 132 cases in the private sector). During this period, the courts upheld 1,250 cases of reinstatement of which: (i) 92 were given effect; (ii) 83 are pending execution as certain elements have not been resolved; and (iii) 1,075 are still pending decisions on appeal. With reference to cases of non-compliance with final reinstatement orders for members of the trade union movement, the Government provides the statistics supplied by the Special Inspection Unit for Crimes against Trade Unionists for the period between January and August 2017, which indicate that, of the 253 cases notified: (i) 61 cases gave rise to charges by the Inspection Unit; and (ii) three cases gave rise to convictions in court cases, and one to the complaint being set aside. The Committee also notes the information provided by the Government concerning a series of institutional initiatives taken since March 2017 with the support of the representative of the ILO Director-General in Guatemala to improve the efficiency of the labour justice system, including: (i) following a preparatory process, the approval in July 2017 by the Supreme Court of Justice of the internal rules for labour and social welfare tribunals; and (ii) progress in the preparation by the Protection (Amparo) and Pre trial Chamber of the rules on the execution of sentences in relation to labour and social welfare, a draft text which addresses, among other subjects, supervision of compliance with reinstatement orders.

The Committee also notes that, in its report in November 2017, the Committee on Freedom of Association, in view of the multiplication of cases on the lack of judicial protection in cases of anti-union discrimination, requested the Government to take the necessary measures to carry out a revision of the procedural rules of the relevant labour regulations (see Case No. 3062, 383rd Report, paragraph 371). In this regard, the Committee notes the indication by the Government that: (i) the Labour Code has been in force for over 70 years and its procedural part has never been revised, for which reason judicial labour proceedings are antiquated and must be updated to guarantee their expedition and implementation; and (ii) as a consequence, the Protection (Amparo) and Pre-trial Chamber of the Supreme Court of Justice has established a working commission to prepare a bill on judicial labour proceedings.

In light of the above, the Committee expresses its concern at the persistence of a high number of complaints alleging the excessive slowness of judicial procedures in cases of anti-union discrimination and the high percentage of non-compliance with reinstatement orders. While welcoming the initiative to adopt a reform of the judicial labour proceedings provided for in the Labour Code, the Committee emphasizes the need for this initiative to include as one of its priorities the adoption of effective judicial procedural rules to ensure that all cases of anti-union discrimination are examined by the courts in a very expeditious manner and that the respective court rulings are implemented rapidly. The Committee urges the Government to take the necessary measures, in prior consultation with the social partners, to reform the procedural rules applicable to all cases of anti-union discrimination as indicated above. The Committee recalls that the Government may request the technical assistance of the Office on this matter and requests it to provide information on any progress in this regard.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee expressed concern at the very low number of collective agreements (80 agreements concluded in the country between 2011 and 2014) and at the absence of collective bargaining in the maquila (export processing) sector since 2013. The Committee requested the Government to make active use of the campaign to promote freedom of association envisaged in the Roadmap to promote mechanisms for collective bargaining, with special attention to the maquila sector. The Committee notes the information provided by the Government on the awareness-raising campaign carried out in relation to freedom of association and collective bargaining, which is examined in the context of Convention No. 87. The Committee also notes the data provided by the Government in October 2017 in the context of the follow-up to the complaint made under article 26 of the ILO Constitution, according to which: between January and September 2017, the Ministry of Labour and Social Welfare approved 13 collective agreements, while another nine agreements are in the process of being approved and another three have to take into account the comments (“previos”) of the Ministry.

While recalling that the prior approval of collective agreements are compatible with the Convention when they are confined to stipulating that approval may be refused if the agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see the 2012 General Survey on the fundamental Conventions, paragraph. 201). The Committee notes with growing concern that the number of collective agreements concluded and approved is extremely low (taking specifically into account the fact that, up to now, collective bargaining has been undertaken in the country in a decentralized form at the enterprise level and in public institutions), and that this number is continuing to fall in relation to previous years. The Committee requests the Government to refer to the new Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles, both legislative and in practice, to the effective promotion of collective bargaining so that it is able to take measures to promote collective bargaining at all levels. In this regard, the Committee notes with interest that the tripartite agreement identifies, among the objectives of the legislative reform that is to be submitted to the Congress of the Republic, the mechanisms and requirements applicable to sectoral collective bargaining addressing, among other matters, the thresholds applicable to the establishment of sectoral trade unions, the right to collective bargaining and the identification of the most representative organization. Recalling that the Government may request the technical assistance of the Office in this regard, the Committee requests the Government to provide information on any developments in this regard.

Articles 4 and 6. Promotion of collective bargaining in the public sector. The Committee notes the various trade union observations received in 2015, 2016 and 2017 alleging a series of violations of the right to collective bargaining in the public sector, and specifically that: (i) as from July 2015, there has been an aggressive campaign from the national mass media, supported by employers, against collective agreements in the public sector, described as the cause of the poor quality of public services and the deficit in public finances; (ii) the investigations initiated by the Office of the Prosecutor General (PGN) in February 2016 against 14 collective agreements in the public sector, and the judicial action launched by the PGN in February 2017 with a view to having various clauses of the Collective Agreement on Public Health set aside on the grounds, allegedly, that there was no prior opinion of the Ministry of Finance for the agreement and that it takes over functions that are of the exclusive competence of the State; (iii) the adoption of two circulars in 2015 and 2016 by the President of the Republic prohibiting an increase, by means of collective bargaining, of financial benefits financed through taxation, which would prevent any negotiation of the financial terms in the public administration; and (iv) the obstacles placed in the way of recently concluded collective agreements in the public sector by the Ministry of Labour and Social Welfare, by denying them approval for reasons not set out in the legislation.

The Committee also notes in this respect the joint observations of the IOE and the CACIF of 2016, indicating that: (i) in October 2015, the CACIF requested the PGN to revise the clauses of the collective agreement on public health contrary to the law and those of an excessive nature; (ii) this request comes as a result of the dissemination by the communication media, as from the end of 2014, of the excesses referred to; and (iii) employers recognize that collective agreements are legal instruments and, with the exception referred to above, have never called for the revision or setting aside of collective agreements concluded by the State.

The Committee notes that the Government’s report does not contain specific information on the issues arising in relation to collective bargaining in the public sector, despite the fact that these issues were raised in several observations by trade unions in previous years. The Committee wishes to recall firstly in general terms that the Convention recognizes the right to collective bargaining of workers in public enterprises and public servants not engaged in the administration of the State. The Committee also recalls that Guatemala has ratified the Collective Bargaining Convention, 1981 (No. 154), an instrument which extends the right to collective bargaining to the public administration as a whole, while recognizing that the exercise of this right may give rise to special modalities of application in that sector.

With regard to the allegations of obstacles to the approval of collective agreements in the public sector by the Ministry of Labour and Social Welfare, the Committee recalls once again that it considers in general that, to safeguard the principle of free and voluntary collective bargaining, procedures for the approval of collective agreements by the public authorities are only compatible with the Convention when they are confined to stipulating that approval may only be refused if the agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. With reference to the public sector, the Committee recalls that it also considers that the specific characteristics of the public administration require a certain level of flexibility, and that in this respect the Convention could be compatible with systems requiring parliamentary approval for certain labour conditions or financial clauses of collective agreements in the public sector, and that in any case the requirement of a financial opinion by the competent authorities prior to the conclusion of an agreement is acceptable. The Committee understands that the requirement for such an opinion exists in Guatemalan legislation. The Committee therefore requests the Government to take the necessary measures to facilitate the process of the approval of collective agreements legally conducted in the public sector by the Ministry of Labour and Social Welfare and to ensure that any refusal to approve a collective agreement is confined to situations in which it has a procedural flaw or does not conform to the minimum standards laid down by the general labour legislation, or the prior financial opinions required by the legislation have not been issued. The Committee also requests the Government to provide information on the consequences of the absence of approval and on the remedies that exist to appeal against such a decision, and to provide its responses to the various specific cases of absence of approval referred to by the trade unions in their observations.

With reference to the allegation by the trade unions of the prohibition of wage bargaining in the public sector through Presidential circulars, the Committee recalls that, while it is fully aware of the serious financial and budgetary difficulties faced by governments, it considers that the authorities should give preference as far as possible to collective bargaining in determining the terms and conditions of employment of public servants. The Committee also considers that limitations on the content of future collective agreements, particularly in relation to wages, imposed by the authorities by virtue of economic stabilization or structural adjustment policies that have become necessary, are admissible on condition that they have been subject to prior consultations with workers’ and employers’ organizations and meet the following conditions: (i) they are applied as an exceptional measure; (ii) they are limited to the extent necessary; (iii) they do not exceed a reasonable period; and (iv) they are accompanied by safeguards to protect effectively the standard of living of the workers concerned, in particular those who are likely to be the most affected (see the 2012 General Survey, op. cit., paragraph 220). The Committee requests the Government to provide its comments on the respective trade union observations and to ensure compliance with the criteria set out above with a view to taking into account both the duty of the State to ensure the balance of public budgets and the right, recognized by Conventions Nos 98 and 154, of workers in the public section to collectively negotiate their remuneration.

With regard to the allegation by the trade unions concerning the judicial action initiated by the PGN against the various public sector collective agreements, the Committee recalls that it considers that a practice whereby the authorities almost systematically challenge the benefits awarded to public sector workers on the basis of considerations related to “rationality” or “proportionality” with a view to their cancellation (by reason, for example, of their cost deemed to be excessive), would seriously jeopardize the very institution of collective bargaining and weaken its role in the settlement of collective disputes. However, if the collective agreement contains provisions that are contrary to fundamental rights (such as non-discrimination), the judicial authority could nullify these provisions so as to ensure respect of higher standards (see the 2012 General Survey, op. cit., paragraph 207). The Committee requests the Government to provide its comments on the respective trade union observations and to make every effort to promote the negotiated and consensual settlement of any disputes which may arise in relation to the allegedly excessive nature of certain clauses of collective agreements in the public sector.

Noting finally that in various cases relating to collective bargaining in the public sector brought before the Committee on Freedom of Association, a significant portion of causes of disputes is due to the absence of regulations, the Committee requests the Government to take, in consultation with the trade unions concerned the necessary measures to place collective bargaining procedures in the public sector in a clear normative framework which ensure that the requirements of financial sustainability and the principles of bargaining in good faith are both taken into account. The Committee reminds the Government that it may request the technical assistance of the Office in this respect and requests it to provide information on any developments in this regard.

Application of the Convention in practice. Dispute Resolution Commission. In its previous comment on the present Convention, the Committee welcomed the establishment of the Commission for the Resolution of Disputes relating to Freedom of Association and Collective Bargaining (hereinafter, the Dispute Resolution Commission). The Committee also recalls that in its observation in 2016 on Convention No. 87, it requested the Government to undertake an evaluation of the terms of reference and operation of Dispute Resolution Commission and to include in the evaluation an examination of the complementarity between the Dispute Resolution Commission and the judicial mechanisms in the country for the protection of freedom of association. The Committee notes: (i) the information provided by the Government on the evaluation of the Dispute Resolution Commission carried out by an independent consultant with the support of the representative of the ILO Director-General in Guatemala; (ii) the indication by the trade unions that the outcomes of the Dispute Resolution Commission have been very poor and that it is necessary to review its terms of reference; and (iii) the indication by the CACIF that most of the sessions of the Dispute Resolution Commission have not been held for lack of quorum. The Committee notes with interest that the tripartite agreement signed on 2 November 2017 provides that the new Tripartite Committee on Industrial Relations and Freedom of Association will integrate the functions of the Dispute Resolution Commission. Noting that the number of allegations of anti-union discrimination and obstacles to collective bargaining made to the ILO continues to be very high, the Committee expects that the creation of the new Tripartite Commission will allow for the establishment of flexible and effective mechanisms to contribute, along with the action of the labour inspectorate and the labour courts, to the resolution of such disputes. The Committee reminds the Government that it may continue to benefit from the technical assistance of the Office and requests it to provide information on the contribution made by the new Tripartite Commission to the resolution of disputes in relation to trade union rights.

The maquila sector. In its previous comments on the present Convention and on Convention No. 87, the Committee requested the Government to take specific measures to promote and guarantee full compliance with trade union rights in the maquila sector and to indicate the number of active trade unions and worker members of those unions in the sector, as well as the number of collective agreements in force. The Committee notes that the Government: (i) reports the holding of a meeting and three bipartite training activities on labour rights in general; and (ii) refers to the implementation in future of a training programme that will include, among other subjects, freedom of association and collective bargaining in the textile and maquila sectors. The Committee notes the observations of the CACIF indicating that, following the registration of two trade unions in November 2016 and January 2017, there are now three unions in the maquila sector with a total of 260 members. The Committee also notes that the 13 collective agreements approved at the national level in 2017 include one relating to a maquila enterprise.

The Committee notes with concern that the unionization rate in the sector is extremely low and that the approval of only one collective agreement covering a maquila enterprise is known in recent years. The Committee requests the Government, within the framework of the new Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles to the exercise of trade union rights and collective bargaining in the maquila sector and to intensify initiatives for the effective promotion of these rights in the sector. The Committee requests the Government to provide information on any developments in this regard.

Application of the Convention in municipal authorities. In its previous comment, the Committee noted with concern the large number of complaints of violations of the Convention at the municipal level and requested the Government to take the necessary measures to ensure the application of the Convention in municipal authorities. The Committee notes the Government’s indication that the Ministry of Labour and Social Welfare has undertaken an awareness-raising process on labour disputes for municipal authorities, starting with a first workshop organized by the Deputy Minister of Labour Administration at the headquarters of the National Association of Municipal Authorities in September 2016. The Committee also notes with concern that the observations of trade unions received in 2017 complain of the persistent violation of Articles 1 and 4 of the Convention in a series of municipal authorities and that various cases that are before the Committee on Freedom of Association refer to violations of trade union rights in municipalities. Emphasizing that the awareness-raising activities of the Ministry of Labour and Social Welfare may support, but cannot replace the intervention of the public authorities, which are responsible for ensuring that municipal authorities comply with the rule of law, the Committee urges the Government to take all the necessary measures to ensure compliance with the Convention in municipalities. The Committee requests the Government to provide information on any developments in this regard.

The Committee expects that the implementation of the tripartite agreement of November 2017 will provide the necessary stimulus for the adoption of the measures it has been requesting for many years, and invites the Government to provide information on any progress achieved.

[The Government is asked to reply in full to the present comments in 2019.]