Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. The Committee notes that these observations refer to matters examined in the present comment and also to reports of violations of the Convention in practice, regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2019, referring to matters examined by the Committee in the present comment.

Lastly, the Committee notes the Government’s replies to the observations made by the ITUC in 2018, which included among others, allegations of anti-union discrimination and obstruction of collective bargaining in both the public and private sectors. These replies were taken into consideration by the Committee in its examination of the various issues raised in the present comment.

With regard to the examination by the Governing Body of the complaint made 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), in the context of which various matters arose in relation to the application of the present Convention, the Committee recalls that the Governing Body, at its 334th Session (October–November 2018), decided to: (i) declare closed the procedure initiated under article 26 of the ILO Constitution; (ii) urge the Government and social partners in Guatemala, with the technical assistance of the Office, to continue to devote all the efforts and resources necessary to achieve a sustained and comprehensive implementation of the road map adopted in October 2013 as part of the follow-up to the above-mentioned complaint; and (iii) establish that the Government of Guatemala would report to the Governing Body, at its October–November 2019 and October–November 2020 sessions, on the further action taken in order to implement the road map.

The Committee notes that, in accordance with what was established by the Governing Body in October–November 2018, a first discussion of measures taken took place in November 2019, with the second discussion planned for November 2020. The Committee also notes the indication given during the exchanges in the Governing Body that a technical cooperation project drawn up by the Office (in consultation with the constituents) to support the full application of the road map will be submitted shortly to the international donors.

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the labour inspectorate. In its previous comments, the Committee noted with satisfaction that Legislative Decree No. 7/2017 had restored the power of the labour inspectorate to impose penalties and asked the Government to provide information on the impact of the new Legislative Decree regarding protection against acts of anti-union discrimination.

The Committee notes the Government’s indications in this respect that: (i) between January 2018 and April 2019, the total number of penalties notified by the labour inspectorate was 1,233, of which 316 have already been paid; (ii) in this early phase of implementation of Decree No. 7/2017, it is not yet possible to disaggregate and isolate information on the penalties applied for violations of trade union rights and of collective bargaining; (iii) however, the Labour Inspectorate (IGT) is developing an electronic system in order to have disaggregated information on, inter alia, the reasons for the penalties and the action taken to comply with them, and the IGT gives a firm undertaking in this respect to provide the requested information in the very near future; (iv) nevertheless, the IGT was able to report that between 2017 and April 2019 it handled 1,179 complaints from trade unions, including, in particular, 333 allegations of reprisals against trade union leaders; and (v) the IGT has a Tripartite Advisory Council, which met on three occasions between January and August 2019 as an appropriate forum for the IGT and the social partners to exchange views on improving the implementation of Decree No. 7/2017.

The Committee welcomes the efforts to develop a comprehensive information system that enables follow-up action to be taken in relation to penalties imposed in matters concerning freedom of association and collective bargaining and tripartite dialogue on the application of the legislation relating to labour inspection to be strengthened. While recalling its previous comments on the content of Legislative Decree No. 7/2017 in the context of monitoring the application of the Labour Inspection Convention, 1947 (No. 81), the Committee once again underlines the vital importance of labour inspection in achieving adequate protection against acts of anti-union discrimination, especially in a context of numerous complaints on this matter. In view of the above, the Committee requests the Government to reinforce the measures taken to ensure that infringements of trade union rights and collective bargaining are given priority treatment by the Labour Inspectorate and to ensure that an effective system of information on the follow-up given to inspections in this regard is established. The Committee requests the Government to provide detailed information in this respect, including the statistics requested in its previous comment. The Committee recalls that the Government may avail itself of the technical assistance of the Office, especially in the context of the start of the technical cooperation project which the Office is about to present to the international donors.

Effective judicial proceedings. In its previous comments, the Committee expressed concern at the many complaints alleging the persistent slowness of judicial procedures in relation to anti-union discrimination and the high level of non-compliance with reinstatement orders. While welcoming the initiative to adopt a reform of the judicial labour proceedings, the Committee emphasized 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 summary proceedings and that the respective court rulings are implemented rapidly.

In this regard, the Committee notes that: (i) the general statistics supplied by the Government on the judicial processing of reinstatement requests in the context of collective disputes continue to show a substantial accumulation of cases pending before the labour courts and before the Public Prosecutor’s Office and a very high level of non-compliance with judicial reinstatement orders; (ii) similar conclusions can be reached from the Government’s detailed replies to specific allegations of anti-union dismissals contained in the 2018 observations of the ITUC and the national trade union federations; (iii) the ITUC’s 2019 observations once again refer to several cases of anti-union discrimination and the ineffectiveness of the justice system in this respect; (iv) CACIF emphasizes that, according to the data supplied by the judiciary, the public sector is where most reinstatements are requested; and (v) even though the draft reform of the judicial procedural rules on labour matters prepared by the Supreme Court, referred to in the Committee’s previous comment, has been submitted to the social partners, giving rise to comments from the employers, no information has been provided on the possible adoption in law of the draft reform.

The Committee notes with concern that the details provided above reveal a lack of progress regarding the judicial response to the cases of anti-union dismissals, an issue which has been raised in its comments on the application of the Convention by Guatemala since 2001. In this regard, the Committee emphasizes that: (i) anti-union discrimination represents one of the most serious violations of freedom of association, since it can endanger the very existence of trade unions; (ii) the persistent failure to comply with a high proportion of reinstatement orders in cases of anti-union dismissals has been highlighted in the recent Governing Body discussions on the application of the road map adopted in 2013; and (iii) in a recent case, the Committee on Freedom of Association once again urged the Government, in consultation with the social partners, to carry out a thorough review of the procedural rules of the relevant labour regulations in order to ensure that the judiciary provides appropriate and effective protection in cases of anti-union discrimination (see Case No. 3188, 386th Report of the Committee on Freedom of Association, paragraph 340).

In view of the above, the Committee urges the Government to address as a matter of priority the need to provide an effective judicial response to the cases of anti-union discrimination. The Committee especially urges the Government: (i) to take measures as soon as possible, in coordination with all the competent authorities, to overcome the obstacles to effective compliance with the reinstatement orders handed down by the courts; and (ii) to take the necessary steps to ensure that, in consultation with the social partners, new procedural rules are adopted so that all cases of anti-union discrimination are examined by the courts in summary proceedings and the respective court rulings are implemented rapidly. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted with growing concern the low and ever-decreasing number of collective agreements that had been signed and approved. The Committee therefore asked the Government to make use of the new National Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles, both legislative and practical, to the effective promotion of collective bargaining with a view to taking measures to foster collective bargaining at all levels.

The Committee notes the information provided by the Government indicating that approval was given to: (i) 17 collective agreements in 2017 (11 in the public sector, six in the private sector); (ii) 14 collective agreements in 2018 (six in the public sector, eight in the private sector); and (iii) 12 collective agreements between 1 January and 18 September 2019 (eight in the public sector and four in the private sector).

The Committee notes with concern that there has been no change in the extremely low number of collective agreements agreed and approved, also recalling that, to date, collective agreement are negotiated and concluded on a decentralized basis, at the level of enterprises and public institutions, which suggests, in the absence of statistics in this respect, extremely low coverage in terms of collective bargaining in the country. The Committee also recalls that, in its previous comment, it noted with interest that the tripartite agreement concluded by the national constituents in November 2017 identified, among the objectives of the legislative reform due to be submitted to the Congress of the Republic, the mechanisms and requirements applicable to sectoral collective bargaining. In this regard, the Committee notes the Government’s indication that, in the context of the discussions on the legislative reforms contemplated in the road map of 2013 and the agreement of 2017, the national constituents agreed in August 2018 on a set of principles on which the future legislation should be based, principles that include the right to collective bargaining of industry trade unions.

The Committee once again requests the Government to make use of the National Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles, both legislative and practical, 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 trusts that the agreement of August 2018 concerning the principles on which the reform of the labour legislation should be based will soon be reflected in the adoption of legislation in the very near future.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In its previous comments, noting the observations of the ITUC and various national trade union federations and recalling that Guatemala has ratified the Collective Bargaining Convention, 1981 (No. 154), which covers the public sector, the Committee asked the Government to take steps to facilitate the process of the approval of collective agreements in the public sector and ensure that any refusal to approve a collective agreement was on grounds compatible with the Convention. The Committee also asked the Government to send its comments on the trade union observations denouncing the prohibition on wage negotiation in the public sector and the legal proceedings instituted by the Public Prosecutor’s Office against 14 collective agreements. Lastly, the Committee asked the Government to take the necessary steps, in consultation with the trade union organizations concerned, to ensure that collective bargaining in the public sector takes place in a clear and balanced regulatory framework.

With regard to the approval of public sector collective agreements and the possibility of negotiating wages in the public administration, the Committee notes the Government’s indications that: (i) section 96 of the Act on the general budget (revenue and expenditure) of the State for the 2019 financial year and section 19 of the “Annual plan of wages and regulations for the Administration” (Government Order No. 245-2018) recognize the possibility of pay negotiations in government entities, taking account of the financial conditions of the State, such information being provided by the Ministry of Finance; (ii) the Ministry of Labour issued a circular dated 25 January 2019 to expedite the process of approval of collective agreements; (iii) in late 2018, the Ministry of Labour submitted to the National Tripartite Committee a draft government order for the purpose of establishing the formal requirements for approval of collective agreements in the public administration; tripartite consolidation of the text is pending; and (iv) the collective agreement on conditions of work of the Education Workers’ Union of Guatemala has already been approved and is now in force. The Government has also provided a chart indicating 12 applications for approval of collective agreements (six in the private sector and six in the public sector) submitted between January and July 2019, in which reference is made to the approval of a single agreement; decisions on the other agreements are pending.

The Committee welcomes the efforts of the Ministry of Labour to strengthen the regulatory framework governing the approval of collective agreements in the public sector, and trusts that the tripartite process which has been initiated will lead to the adoption of legislation in accordance with the Convention and that it will contribute towards significantly expediting the approval process which, according to the information supplied by the Government, is still excessively long. The Committee requests the Government to provide information in this regard.

With regard to the claims of the trade union organizations concerning investigations and legal proceedings launched by the Public Prosecutor’s Office against a number of collective agreements in the public sector, the Committee notes the Government’s statement that the Public Prosecutor’s Office does not systematically challenge the benefits granted through collective bargaining but seeks to ensure that the principle of legality prevails in the exercise of the right to collective bargaining. The Committee once again 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 (e.g. non-discrimination), the judicial authority could nullify these provisions so as to ensure respect of higher standards (see the 2012 General Survey on the fundamental Conventions, paragraph 207). The Committee therefore once again requests the Government to take all possible steps to promote the negotiated, consensual settlement of any disputes that arise regarding the supposedly excessive nature of certain clauses in collective agreements in the public sector.

Application of the Convention in practice. Maquila sector. In its previous comments, having noted with concern that the unionization rate in the sector was below 1 per cent and that the approval of only one collective agreement covering a maquila (export processing) enterprise was known in recent years, the Committee asked the Government to examine with the social partners, in the new National Tripartite Committee on Industrial Relations and Freedom of Association, 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 notes with regret that the Government’s report does not contain any specific information on the requested actions or any new data relating to the exercise of trade union rights and collective bargaining in the maquila sector. The Committee is therefore bound to repeat its previous requests and hopes that the Government will provide information on specific initiatives in its next report.

Application of the Convention in municipal authorities. In its previous comment, in view of the large number of allegations of violations of the Convention at the municipal level, the Committee urged the Government to take all the necessary measures to ensure compliance with the Convention in municipalities. The Committee notes the Government’s indication that, in the context of the entry into office of the new municipal authorities resulting from the municipal elections of June 2019, the Ministry of Labour submitted to the National Tripartite Committee a proposal for a statement concerning the need to avoid anti-union dismissals in municipal authorities. The Ministry is still awaiting comments on this matter from the worker members of the National Tripartite Committee.

The Committee also notes the Government’s detailed replies to the 2018 observations of the ITUC, the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala concerning specific situations within municipalities. The Committee notes with concern that the information supplied shows that both labour inspections and court decisions are often insufficient to resolve situations involving violations of the Convention, especially in relation to cases of anti-union dismissals of municipal workers.

Underlining the need for effective mechanisms to ensure that municipal authorities comply with the rule of law and that an exhaustive analysis is carried out of the reasons for the high degree of conflict in this sector, the Committee urges the Government to take all the necessary measures, including the adoption of legislation if necessary, to ensure the application of the Convention in the municipal authorities. The Committee requests the Government to provide information on progress made in this respect.

Tripartite dispute settlement in relation to freedom of association and collective bargaining. In its previous comment on the present Convention, published in 2018, the Committee noted with interest that the tripartite agreement signed on 2 November 2017 provided that the new National Tripartite Committee on Industrial Relations and Freedom of Association will incorporate the functions of the tripartite Dispute Settlement Committee, established in 2016 for the purpose of resolving disputes concerning freedom of association and collective bargaining by means of voluntary conciliation. In the above comment, and in its comment on the application of the Labour Inspection Convention, 1947 (No. 81), published in 2019, the Committee, noting the large number of disputes referred to the ILO, encouraged the Government and the social partners to devote the necessary efforts to ensure that the new Dispute Settlement Subcommittee can contribute very quickly to a better application of the Conventions on freedom of association and collective bargaining ratified by Guatemala.

The Committee notes the Government’s indication that: (i) it conveyed its willingness to the National Tripartite Committee to immediately hire an independent mediator who will be chosen by the parties and attached to the new Dispute Settlement Subcommittee; (ii) the tripartite members of the Subcommittee are continuing their discussions on approving the internal regulations and deciding who the independent mediator will be; (iii) five complaints before the former Dispute Settlement Committee have still to be resolved and six complaints submitted to the Subcommittee have still to be considered for admissibility; and (iv) until such time as the Subcommittee is operational, the Government is endeavouring to create ad hoc tripartite dialogue round-tables to resolve specific disputes, as in the case of an agri-food enterprise referred to in previous trade union observations.

While duly noting the information supplied by the Government, the Committee notes with regret that, two years after the creation of the National Tripartite Committee, its Dispute Settlement Subcommittee is still not operating. The Committee strongly encourages the tripartite members of the National Tripartite Committee to take the necessary steps to ensure that the Dispute Settlement Subcommittee starts to process in the very near future the specific cases which have been referred to it. The Committee reminds the Government and the social partners that they may continue to avail themselves of the technical assistance from the Office in this respect.