Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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 2021, referring to issues examined by the Committee in the present comment. The Committee also notes the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 31 August 2021, containing numerous allegations of anti-union discrimination and obstruction to collective bargaining, in both the private and public sector. While noting the Government’s replies to these observations, the Committee requests it to provide specific follow-up to each of the cases highlighted by the trade union organizations with a view to ensuring the application of the guarantees established by the Convention.

The Committee also notes the Government’s comments on the issues raised in 2020 by the national trade union organizations concerning the impact of the COVID-19 pandemic on the application of the Convention.

In its previous comments, the Committee noted the closure by the Governing Body of the complaint made in 2012 under article 26 of the ILO Constitution, concerning non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee recalls that in the follow-up to the above-mentioned complaint and in the road map adopted by the Government in 2013 in the context of the complaint, several issues had been raised with regard to the implementation of Convention No. 98. The Committee noted that during the 340th Session of the Governing Council (October–November 2020), the Governing Body had welcomed the technical cooperation project “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and had requested the Office to present an annual report on the implementation of the project at its October–November meetings, during the three-year project duration (decision GB/340/INS/10). The Committee notes the discussions held at the 343rd Session of the Governing Council (October–November 2021) regarding the implementation of the above-mentioned project and the decision of the Governing Body to take note of the information provided by the Office in this respect (decision GB.343/INS/7).

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the General Labour Inspectorate. In the context of the implementation of Legislative Decree No. 7/2017, which had restored the power of the General Labour Inspectorate to impose penalties, and after underlining 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, the Committee, in its previous comment, noted: (i) the first figures provided by the General Labour Inspectorate concerning anti-union acts and their treatment; and (ii) the forthcoming adoption of the Ministerial Agreement that will render operational the General Labour Inspectorate Tripartite Advisory Council, which is the appropriate forum for the labour inspection services and the social partners to exchange views on improving the implementation of Decree No. 7/2017. The Committee notes that, in its latest report, the Government: (i) provides information, within the framework of the Single Protocol on Procedures of the General Labour Inspectorate, on the existence and application of the special investigation procedure on freedom of association and collective bargaining, the content of which was revised in 2017; (ii) indicates that, according to the Statistics Bureau, the General Labour Inspectorate received, between 2017 and 17 May 2021, 352 complaints relating to the exercise of freedom of association and the right to collective bargaining; (iii) reports that, with the support of the ILO through the project, “Supporting respect for workers’ labour conditions in the agricultural export sector in Guatemala”, the General Labour Inspectorate is revising its electronic case system; and (iv) between 1 January 2020 and May 2021, the General Labour Inspectorate organized 34 dialogue forums, aimed at settling collective disputes with results achieved in four cases to date. While noting the information provided by the Government, the Committee notes that it has not received information on the inspection activities and decisions taken by the General Labour Inspectorate in relation to the complaints of anti-union acts registered, or on initiatives, including through the functioning of the General Labour Inspectorate’s Tripartite Advisory Council, aimed at strengthening the effectiveness of the Inspectorate with regard to protection against anti-union discrimination. The Committee therefore once again requests the Government to strengthen the measures taken to ensure that violations of trade union and collective bargaining rights are dealt with by the General Labour Inspectorate as a matter of priority, and that, with the above-mentioned support of the Office, an effective information system is set up shortly to follow up on inspection activities in this area. The Committee trusts that the Government will provide full information in this respect, including the statistics requested in its previous comments.

Effective judicial proceedings. For many years, the Committee has expressed concern, along with the Committee on Freedom of Association, 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. The Committee notes that the Government refers firstly to general initiatives aimed at expediting all judicial procedures relating to labour, which include: (i) the transformation of the labour and social security courts into jurisdictional bodies with several magistrates; (ii) the restructuring of the units that make up the Auxiliary Services Centre of the Labour Law Administration; (iii) implementation of digitalized measures and tools at various stages of proceedings; and (iv) the continuation of the examination by the Congress of the Republic of the Code of Labour Procedure developed by the Supreme Court of Justice. The Committee notes the information provided by the Government on the status of the proceedings of the 7,113 legal actions for reinstatement filed between 1 January 2020 and 9 April 2021 (6,980 pertaining to State employees, 133 pertaining to individual workers), which resulted in: (i) 131 withdrawals and dismissals; and (ii) 2,165 final decisions of reinstatement, of which 197 were implemented and 1,795 were subject to appeal. The Committee further notes the Government’s indication that the Attorney General’s Office, Ministry of Labour and Social Welfare (MTPS), Office of the Auditor General, Public Prosecutor’s Office, National Civil Service Office and the judiciary participated in working groups to identify mechanisms to improve implementation of reinstatement processes proposed by public sector workers. In light of the above, the Committee notes that: (i) the general statistics provided by the Government on the judicial treatment of reinstatement applications continue to indicate a significant backlog of cases pending before the courts and the persistence of a high number of reinstatement orders handed down by the courts that have not been complied with; and (ii) national and international trade union organizations continue to denounce, in the private and public sectors, numerous cases of anti-union discrimination and non-compliance with reinstatement orders. Regretting yet again the absence of specific information, the Committee urges once again the Government to take, as a matter of priority, actions to provide an effective judicial response to the cases of anti-union discrimination. In this regard, the Committee urges once again the Government to: (i) 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) 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. Noting that the draft Code of Labour Procedure is still being examined by the Congress of the Republic, the Committee recalls that the content of this text may benefit from the technical assistance of the Office. The Committee requests the Government to provide information on any progress in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted with growing concern that the already extremely low number of collective agreements agreed and approved in the country continues to decline. In light of this situation, the Committee requested the Government to make use, with the support of the technical cooperation programme developed by the Office, of the National Tripartite Committee on Labour Relations and Freedom of Association (hereinafter the National Tripartite Committee) 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 expressed the firm hope 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.

The Committee notes the Government’s information that: (i) the legislative reforms requested by the Committee concerning freedom of association and collective bargaining are part of the work plan of the National Tripartite Committee and its Labour Policy and Legislation Subcommittee, and have resulted in meetings of the National Tripartite Committee with the Subcommittee; (ii) the support of the Office has been requested for a workshop on collective bargaining that will be held by the end of the year; and (iii) with the support of the Office, a campaign on decent work for the agricultural sector is being developed, which includes the themes of freedom of association and collective bargaining. The Committee further notes that, according to data provided by the Government in the information attached to document GB/343/INS/7 submitted to the Governing Body at its October–November 2021 session, 12 collective labour agreements were signed and approved during 2020 and 11 agreements between 1 January and 13 September 2021.

The Committee regrets to note that the number of signed collective agreements remains very low and that no progress has been made to overcome the legislative and practical obstacles to the effective realization of the right to collective bargaining in the country. While referring to its comments concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Rural Workers’ Organisations Convention, 1975 (No. 141) on the need for the Government to effect the legislative reforms that have been requested for many years to bring the legislation into conformity with the ratified Conventions concerning freedom of association and collective bargaining, the Committee once again urges the Government to take tangible measures to effectively promote collective bargaining at all levels. Recalling that the Government has the technical assistance of the Office, the Committee hopes to receive information on progress made in this respect.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In its previous comment, the Committee requested the Government to facilitate the process of the approval of collective agreements in the public sector. In light of allegations that the Public Prosecutor’s Office was legally challenging the benefits granted through a series of collective agreements, the Committee also requested 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. In its previous comments, the Committee also encouraged the Government’s efforts to ensure that collective bargaining in the public sector takes place in a clear and balanced regulatory framework.

The Committee notes the Government’s indication that the subjects referred to above have been submitted to the Labour Policy and Legislation Subcommittee of the National Tripartite Committee and that they are part of its work plan. The Committee also notes the indications of the Public Prosecutor’s Office, that it takes due account of the fundamental right to collective bargaining while ensuring, through prior monitoring of the content of collective agreements in the public sector, respect for the rule of law. While taking due note of this information, the Committee notes that: (i) it does not have updated information on the various decisions to approve public sector collective agreements and their time lines; (ii) as noted in Case No. 3179 examined by the Committee on Freedom of Association (393rd Report of the Committee, March 2021), legal challenges on the validity of certain clauses of the collective agreement of the health sector are ongoing; (iii) the trade union organizations continue to question the grounds for not approving certain collective agreements, decisions which, according to the Government, are due to the need to remove certain unlawful clauses from the agreements in question; and (iv) no new information has been received from the Government to strengthen the regulatory framework of public sector collective bargaining. In light of the above, the Committee requests the Government to provide information on: (i) the time lines for approving public sector collective agreements and the grounds for the decisions not to approve certain agreements; and (ii) the development of cases in which the validity of certain clauses of public sector collective agreements has been legally challenged. The Committee also reminds the Government that it may avail itself of the technical assistance of the Office to strengthen the regulatory framework of public sector collective bargaining.

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 requested the Government to take specific initiatives to promote collective bargaining in the maquila sector. The Committee notes the Government’s indication that: (i) from 1 January 2020 to 17 May 2021, the MTPS recorded three applications for registration of trade unions of the maquila sector, two of which resulted in comments (“previos”) of the labour administration and one, received on 6 May, which was waiting to be examined; (ii) a collective agreement of an enterprise in the maquila sector was approved in 2020; (iii) the MTPS regularly conducts training on labour rights, including collective rights, particularly aimed at women maquila workers; and (iv) the Maquila Coordination Committee, which brings together institutions and organizations that develop actions for women workers in the clothing and textile industry, has been strengthened. While noting this information, the Committee regrets to note that collective rights are still barely exercised in the maquila sector and that there is an absence of initiatives effectively focused on promoting them. The Committee therefore urges the Government to take specific initiatives to promote freedom of association and collective bargaining in the maquila sector and requests it to provide information in this respect.

Application of the Convention in municipal authorities. In its previous comments, in view of the large number of allegations of violations of the Convention in various municipalities in the country, the Committee expressed its concern at the information 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. The Committee notes that: (i) the General Labour Inspectorate participated in dialogue forums following the dismissal of municipal union workers; and (ii) the National Association of Municipalities of the Republic of Guatemala affirms its support of fundamental labour rights but states that it must obtain the consensus of the country’s 340 municipalities in order to be able to participate in dialogue forums. The Committee also regrets to note that the 2021 observations of the national trade union organizations once again denounce many cases of violation of the Convention involving the leaders and members of municipal workers’ trade unions. The Committee therefore once again urges the Government to take all necessary measures, including the adoption of legislation if necessary, to ensure the application of the Convention in the municipalities. The Committee requests the Government to keep it informed of any progress achieved in this respect.

Tripartite dispute settlement in relation to freedom of association and collective bargaining. In its previous comment, the Committee emphasized the important role that the Subcommittee on Mediation and Dispute Settlement of the National Tripartite Committee can play in a context of numerous allegations of anti-union discrimination and noted that the technical cooperation programme developed by the Office provides for its strengthening. The Committee notes from document GB/343/INS/7 that: (i) in 2020, members of the Subcommittee on Mediation and Dispute Settlement participated, with the support of the Office, in a distance training course of the International Training Centre of the ILO on conciliation and mediation of labour disputes, as well as an international event on social dialogue in 2021; (ii) in 2020, the Subcommittee held six ordinary sessions at which two requests for the examination of cases were received and declared admissible; (iii) from 1 January to 16 September 2021, the Subcommittee held one ordinary session at which one request for the examination of a case was received but it has not yet been declared admissible; and (iv) in the period under review, no mediation or dispute settlement meetings were held. While it considers that the restrictions as a result of the COVID-19 pandemic may have had an impact on the activities of the Subcommittee, the Committee regrets to note the lack of meetings held by the Subcommittee on Mediation and Dispute Settlement to settle certain disputes. The Committee expresses the firm hope that the Government will be able to provide information in the near future on the tangible contribution of this Subcommittee to the resolution of collective conflicts and the strengthening of social dialogue in the country.

Regretting that, despite the existence of the National Tripartite Committee and the technical assistance provided by the Office, no tangible progress has been made in the last three years, the Committee recalls that it falls to the Government to take decisions necessary for the fulfilment of the State’s international commitments made through the ratification of international labour conventions. The Committee therefore urges the Government to take the necessary measures to remedy as soon as possible the serious violations of the Convention that the Committee has been noting for many years.

[The Government is asked to reply in full to the present comments in 2023.]