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

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative indicated that the Committee of Experts' comments acted as guidelines for applying and complying with the commitments made in the quest for better conditions, as well as for strengthening labour relations for the socio-economic development of the population at large. He welcomed the Office's technical assistance for applying and complying with international labour standards, stressing that it was necessary to continue strengthening and boosting technical support, assistance and cooperation. The work of the technical mission that visited Guatemala between 26 February and 2 March 2007 was extremely useful in continuing or adopting the necessary measures for compliance with the Committee of Experts' comments. The members of the technical mission held meetings with various governmental institutions such as the tax authority, the National Civil Service Office, the President's Commission on Human Rights, Supreme Court judges, prosecutors belonging to the special prosecution service for offences against journalists and trade unionists of the Public Prosecutor's office, members of the Congressional Labour Committee and workers' and employers' organizations, including the Tripartite Commission on International Labour Affairs.

During those meetings, the Government submitted detailed information and responded to questions from members of the technical mission on a variety of subjects raised by the supervisory bodies. Although the technical mission's report had still not been received, the Government had already begun to take measures in compliance with the recommendations and suggestions made therein, such as measures for holding tripartite meetings on freedom of association and collective bargaining in the maquila industry. Taking into account the significance of the issue, technical and financial assistance had been requested for holding monthly tripartite meetings on that subject at the ILO Subregional Office in Costa Rica, which had received a favourable response.

A bill was being drafted concerning legal reforms to the Labour Code to comply with the provisions of the Conventions on freedom of association. The bill was in the discussion and negotiation phase with the various sectors. Therefore, he requested that technical assistance continued. The Government representative indicated that, since the Ministry of Labour and Social Security wished to continue dialogue and respond to the various concerns put forward by the Guatemalan trade union and employer representatives, it would begin to hold permanent meetings in order to improve labour relations. The labour issue was central to the successful application of the Free Trade Agreement between Central America, the Dominican Republic and the United States, meaning that the commitments arising from the Declaration on Fundamental Principles and Rights at Work should be made effective. The Government was receiving cooperation on various projects, some of which were undertaken with the Subregional Office for Central America. One example was the project to strengthen justice at work in Central America and the Dominican Republic. Its immediate goal was to bring about effective compliance with international labour standards through a range of highly significant activities such as courses and workshops to help improve compliance with labour legislation.

With regard to the comments made by the former International Confederation of Free Trade Unions (now the International Trade Union Federation), the Government representative indicated that the relevant investigations had been undertaken and their observations had been sent to the Office.

With regard to the cases heard before the Committee on Freedom of Association, the Government representative indicated that the allegations made were being investigated and that they would send the corresponding observations in each case. He expressed a willingness to continue all efforts, as was shown by the regular information sent and in the establishment of a tripartite commission to undertake independent investigations.

With regard to the initiative to amend the Civil Service Bill, the Government representative said that broad consultations had taken place, that contradictory proposals had been made in Congress and that he would keep the Committee informed of developments. In January 2007, technical assistance was requested from the Committee on Freedom of Association in order to analyse and implement recommendations and suggestions needed to make the initiative compatible with Conventions Nos 87 and 98, but a response had yet to be received.

With regard to the complaints made concerning the non-existence of sufficient safeguards on the dismissal of civil servants, the speaker said that the provisions governing labour infractions or offences could be found in Guatemala's Constitution, Labour Code, Civil Service Act and its regulations, and the Unionization and Regulation of Strikes by State Workers Act. For those provisions to be applied, the facts must be examined to decide on which punishment was merited, ranging from a verbal warning to dismissal. There were in fact sufficient safeguards in the procedures concerning the dismissal of civil servants, in terms of both the right to defence and the appeal remedies available. The Government representative added that the Government had continued and strengthened tripartism and social dialogue, spurred on by the ILO, through the National Occupational Health and Safety Council, the National Salary Commission and the Tripartite Commission on International Labour Affairs. He stressed the work undertaken by the latter body, which carried out effective consultations on all issues covered by the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and examined issues relating to freedom of association and collective bargaining. Significant tripartite agreements had been reached. Conciliatory dialogue had been introduced in 15 cases through the rapid response mechanism, bipartite meetings were being held between workers and employers to draft procedures for trying labour and social security offences in order to expedite the process. Those draft procedures would be then sent to the Supreme Court for the judges to give their opinion. The tripartite subcommissions and councils had begun to meet and priority was given to those cases presented by the Trade Union of Workers of Guatemala (UNSITRAGUA), independent investigations recommended in some cases by the Committee on Freedom of Association and legal reforms proposed by the Committee of Experts. All that was left was for the sectors to nominate the members of those commissions.

Meetings had been held with the congressional working committee on legal reforms. Meetings also took place with Supreme Court judges in order to improve the application of labour legislation in labour courts. That had expedited trials for labour and social security offences, with the respective fines being imposed. The tripartite proposal to appoint an official dedicated specifically to processing labour and social security offences was being considered, as was the tripartite proposal to hold courses and workshops for judges in order to unify criteria.

With regard to the complaints made concerning breaches of collective agreements, the Government representative indicated that, according to a joint investigation undertaken by the Ministry of Labour and Social Security and the labour courts, complaints were few. He stressed that, when a complaint had been made, the parties in conflict were asked to use the Joint Board to reach agreements through mediation and by complying with the collective agreements. Concerning anti-union dismissals, he indicated that, in accordance with an investigation undertaken by the labour courts, complaints were few, in spite of the existing legal measures.

The Ministry of Labour and the Supreme Court judges had begun an investigation into all complaints of non-compliance with the reinstatement of dismissed unionists, as part of the cases heard by the Committee on Freedom of Association. Information was sent concerning the cases in which reinstatement had been made effective. In those cases in which it had not been made effective, the offence of disobeying private sector employers that did not comply with judicial rulings was noted, with a criminal case being launched. When that involved mayors or State Ministers, the matter should be resolved before pre-trial in order to begin criminal proceedings. Other cases remained to be heard by other courts owing to applications for the protection of constitutional rights (amparo) or appeals.

With regard to the recommendation by the Committee of Experts on revising the procedures provided for in legislation since the structure of labour trials and the number of courts able to hear a case meant that they lasted for years, the Government representative indicated that the Special Congressional Commission for reforms in the justice sector had drafted a bill to approve reforms to the Act on Amparo, Habeas Corpus and Constitutionality which had been passed and then approved in second reading by Congress. That proposal was the result of support from Supreme Court judges, the National Commission for Monitoring and Supporting the Strengthening of Justice, officials from the Public Prosecutor's Office, lawyers from the national legal aid system, representatives of the Colegio de Abogados and civil society representatives. The reforms sought to improve and expedite the amparo process, turning it into an extraordinary, short and effective system in terms of its status as the guardian of fundamental rights. The Government representative recognized that the current system had caused delays, overloaded the courts and generated abuses. He felt that it was unnecessary to reform the Code of Labour Procedure, although there had been meetings in that respect and Supreme Court judges maintained a continuous dialogue with all the country's judges in order to expedite labour trials, being entirely oral.

With regard to the project concerning the national policy on free advice for workers who wished to form trade unions, he indicated that it was moving forward and that didactic material had been distributed throughout the country as part of a national policy to protect and develop trade unionism. The Government representative stressed that the Ministry of Labour was endeavouring to comply with and effectively apply international labour standards and reiterated his willingness to investigate and resolve all cases of anti-union violence. In that respect, updated information had been sent concerning the investigations by the special prosecution service for offences against journalists and trade unionists of the Public Prosecutor's office, as part of cases heard before the Committee on Freedom of Association. He stressed that some cases had been thrown out and in others, it was impossible to take the investigations forward owing to the lack of cooperation by the complainants themselves, particularly in the case of threats, which were independent offences to be heard by a different authority. Lastly, the Government representative indicated that the Government continued to work and take significant steps forward, although he recognized that there were pending issues. Those would require more time, assistance and cooperation, but efforts were being made to achieve decent work for all with sustainable development.

The Employer members appreciated the positive attitude of the Government. They recalled that the Committee had discussed the case of Guatemala every year between 1991 and 2005 under Convention No. 87, and, more recently, for the last two years under Convention No. 98. While the Committee had been able to note progress on several occasions, the Committee of Experts' observation described a number of remaining problems. Convention No. 98 was quite different to Convention No. 87, dealing with two specific matters: the protection of the right to organize, and protection of workers' and employers' organizations from interference by each other. The Convention also promotes collective bargaining, stressing the autonomy of the social partners and voluntariness. The Committee of Experts had identified at least eight issues where the legislation could be insufficient, on all of which the Government had provided information. With regard to the recent technical assistance mission, the Employer members noted that its report was not yet available, which would have given the Committee an updated picture of the situation. The Employer members requested that the Government bring law and practice into line with the Convention.

The Worker members pointed out that the case of Guatemala had unfortunately become a so-called chronic case characterized by persistent violations of the right to organize and collective bargaining. In 2006, the Committee had expressed its deep concern as regards the climate of continuous violence, the inertia of the legal system, the inactivity of the Government when it came to bringing national legislation and practice into line with the Convention and taking the specific measures required in the export processing zones.

The Worker members noted that the consecutive reports of the Committee of Experts did not reveal any real progress. Violence and dismissals still affected workers seeking to undertake union-related activities; the practice of blacklists persisted; trade unionists in enterprises were still intimidated; the legal system continued to work with an intolerable slowness; the number of collective agreements signed in the export processing zones remained ludicrous. In 2007, three trade unionists had already been murdered, and others had been imprisoned. Undeniably, that picture did not demonstrate an improvement in the situation. In its report, the Committee of Experts confirmed that no progress had been recorded concerning the reinstatement of dismissed trade unionists, the tardiness of procedures, trade union rights in the export processing zones, arbitrary dismissals and the violation of collective agreements, guarantees for the dismissal of civil servants, consultation of social partners, revision of the Code of Labour Procedures and reform of the Civil Service Bill. Regrettably, the reality experienced by the workers of Guatemala confirmed that bleak picture. As regards the statistics provided by the Government, the Worker members treated them with scepticism and requested more precise information regarding the specific results of the technical mission. Lastly, they requested that the conclusions concerning the case be very clear and very firm.

The Worker member of Guatemala paid tribute to Pedro Zamora, Secretary General of the Sindicato de Trabajadores de la Empresa Portuaria Quetzal (STEPQ), who was murdered on 15 January 2007 for reasons linked to his role as a labour activist. The speaker welcomed the support of the International Trade Union Confederation, which had immediately sent a mission to the country. The ongoing impunity in Guatemala for those who committed anti-union acts should be brought to an end.

The speaker criticized the strategies that sought to silence and discredit trade unions and their leaders through intimidation campaigns in the press and unlawful entries and searches of trade union premises. While there were consultations under the tripartite committee established to comply with Convention No. 144, it remained necessary to recognize, abide by and monitor the strict application of the Conventions on freedom of association. The strategy to violate those Conventions included promoting activities by solidarity associations, cooperativism and anything that encouraged a neo-liberal economic project.

The speaker cited particular cases in which union workers had been dismissed and examples of labour law proceedings that had come to a standstill, in addition to a lack of willingness to enter into collective bargaining. Recalling other murders of union leaders in February 2007 in Guatemala City, the speaker stressed the need for the ILO to ensure that freedom of association and collective bargaining were protected in Guatemala.

The Employer member of Guatemala stressed that the ILO supervisory bodies were being used persistently and indiscriminately, even when national circumstances did not warrant it. A direct contact mission had proposed establishing a system to postpone cases to avoid that bad practice, but it had been entirely unsuccessful. The situation in Guatemala was far from being that in which there was a general climate of anti-union acts in the public sector and in private enterprise, even if the existence of some isolated acts had to be recognized. They would be heard by the courts and, if proven, severely punished. Those circumstances had been noted by the direct contact missions and the technical mission that visited Guatemala. There were hidden interests involved in the examination of the case, as was the situation some years earlier when the region was negotiating a free trade treaty and most countries involved were invited to supply explanations to the Committee. The current interest was identified by the Tripartite Commission on International Labour Affairs which argued that the case in question, like those examined by the Committee on Freedom of Association, should be taken into consideration in the report to be presented to the United States Congress as part of the examination of the free trade treaty. The supervisory bodies were being used as instruments, and therefore belittled and called into question. In Guatemala, the informal economy encompassed 75 per cent of the working population. Formal employment should therefore be generated as a priority. He indicated that in many cases, the bargaining that took place between workers and employers for the benefit of all workers in a company was carried out through mechanisms that, while recognized in law and in doctrine, did not include trade unions, but groups of workers represented in ad hoc committees or permanent committees, when the quorum for forming a union was not met. It amounted to good faith negotiations, held in accordance with the law and for the benefit of all the workers in the company. In the specific case of the export processing zones, the Employer member stated that one week earlier, negotiation of a tripartite agreement in a textile company had taken place, fully respecting and ensuring the union rights of all workers. He recalled that garment and textile companies accounted for 12 per cent of formal labour, encompassing some 120,000 jobs, of which over half were taken by women. Moreover, the collective agreements in force in the textile sector covered more than 10 per cent of the workers, demonstrating the progress made by Guatemala in promoting collective bargaining.

The Worker member of Norway recalled that the Committee had discussed the case for many consecutive years under Conventions Nos 87 and 98. Each year, the Government had asked for more time to rectify breaches of the Conventions, which raised doubts as to its political will. Workers in Guatemala continued to be victims of flagrant violations of labour rights. One of the three trade union leaders who had been murdered since the beginning of 2007 was Pedro Zamora, in Puerto Quetzal, who was in conflict with the management over privatization plans. Five of his colleagues and also the leader of the teachers' union had received death threats. Guatemalan workers were among the lowest paid in Latin America with only some 2 per cent represented by unions. Even fewer enjoyed the benefits of collective bargaining. The two new unions in the export processing zones referred to by the Government representative, represented only a tiny proportion of the workers in that sector, and they did not enjoy the right to strike or bargain collectively. Blacklists of union activists existed and court decisions ordering the reinstatement of dismissed trade unionists were not respected. She urged the Government representative to bring the murderers of trade union leaders to justice and to bring national legislation into line with the Convention without further delay.

The Government member of Norway speaking on behalf of the Governments of Denmark, Finland, Iceland, Norway and Sweden, noted with regret that the Congressional Labour Committee had issued an unfavourable decision regarding the reform of the Civil Service Bill. At the same time, the speaker welcomed the Government's recent acceptance of a technical mission to the country and expressed the firm hope that it would help the Government to take the necessary measures to bring the national legislation into conformity with the requirements of the Convention. The Nordic Governments further expressed grave concern at the acts of violence against trade union leaders and members that continued to be reported. Those acts included murder, death threats, the circulation of blacklists of trade union representatives and the persecution of workers because of the establishment of a trade union. The speaker pointed out that acts of violence against trade unionists were seldom investigated and even more seldom clarified. Although labour courts had often recognized unjustified dismissals of trade unionists, remedies were rarely granted. The Nordic Governments observed that those issues were also being examined by the Committee on Freedom of Association and noted with great interest that the Government had emphasized the importance of the dimension of work for the successful application of the Free Trade Agreement between Central America, the Dominican Republic and the United States, which entered into force in April 2005. The Government had pointed out that through the "Comply and Win" plan approved by the United States Government and the Ministry of Labour and Social Security, it had committed itself to publicizing and disseminating the Labour Code and the ILO fundamental Conventions, and to establishing the office of alternative dispute resolution. In that framework, and with the financial support of the United States Department of Labor, the ILO Subregional Office for Central America would undertake a project on strengthening of justice at work in Central America and the Dominican Republic. The speaker expressed the hope that that project would result in significant accomplishments as regards the effective protection of fundamental trade union rights. Lastly, the Nordic Governments expressed the hope that the Government would introduce policies aimed at ensuring full respect for the human rights of trade unionists and that the protection mechanism would become operational in the near future. They again welcomed the Government's request for ILO technical assistance.

The Worker member of Nicaragua expressed his solidarity with the Guatemalan workers who lived in constant danger and criticized the anti-union attitudes and environment of impunity surrounding those who threatened and murdered workers. He referred to raids on trade union offices, as was the case with the Guatemalan Education Workers' Trade Union (STEG). He criticized the abduction of union leaders, such as Mr Nery Barrios, a member of the Unified Trade Union Popular Action Group (UASP), as well as practices seeking to thwart the free development of union activities and the fact that union leaders were forced to ask permission to leave the country and to be able to participate in international or regional organizational activities. The speaker also referred to the case of Mr Joviel Acevedo, leader of the education union, who was dismissed from his post and beaten. Judicial proceedings were slow and the legal authorities were generally ineffective, when it was their role to act as a watchdog of union rights and to prevent systematic violations of collective conventions. Lastly, the speaker urged the authorities to take the measures necessary to ensure public safety and the observance of collective conventions and freedom of association.

The Worker member of Spain indicated that experts in Latin American trade unionism usually cited the policies that had been implemented in Guatemala over many years as examples of systematic policies seeking to weed out the trade union movement. The Government purported that there were no reinstatement orders for illegally dismissed trade unionists pending before the labour courts, and that there were no complaints regarding the slowness of procedures relating to penalties for violating labour laws. The Government further purported that in spite of the numerous complaints concerning violations of collective agreements, acts of employer interference, acts of anti-union discrimination, particularly in the context of trade union formation and anti-union dismissals, most were resolved through mediation or the withdrawal of the complaint, meaning that, as a consequence, penalties were issued in only one case. Some 250 enterprises employed an average of 200 staff in the Guatemalan maquila industry. The Government purported that in March 2006, there were eight registered trade unions, including the two most recently established, with 51 members. By extrapolating those figures, the speaker calculated that the membership rate in the maquila industry would be 0.005 per cent - clear proof that the labour and salary conditions in the Guatemala maquila industry were unacceptable.

The Worker member of India expressed his solidarity with the cause of the Guatemalan trade unions and workers. Law and administration of justice in Guatemala had to be fully brought into conformity with the letter, spirit and requirements of the Convention. The Government had to make further efforts to guarantee the right to organize and collective bargaining. The speaker requested the Committee to call on the Government to expedite its efforts to give effect to basic trade union rights.

The Worker member of the United States welcomed the promotional measures taken by the Government referred to in the Committee of Experts' observation, as well as the establishment of the office of alternative dispute resolution. However, two fundamental shortcomings remained. Firstly, the labour rights dispute resolution mechanism in the Free Trade Agreement between Central America, the Dominican Republic and the United States only required the United States' trading partners, including Guatemala, to comply with the existing labour law, rather than bringing it into conformity with the ILO Conventions. Secondly, the promotional measures taken did not mean that non-conformity of the legislation with Convention No. 98 had been remedied. The 2003 United States State Department's Human Rights Report on Guatemala recognized the existence of anti-union discrimination, and the Committee of Experts' observation confirmed that the situation continued. The information provided by the Government to the Committee of Experts on the measures taken to advance trade union rights in the export processing zones was questioned, since only one collective agreement applied in that sector. Employer intimidation of workers, reinforced by dismissals or violence, when necessary, as well as direct restrictions on union access to workplaces had resulted in a union rate of less than 3 per cent and in a handful of collective agreements. Moreover, the Labour Code still required over 50 per cent authorization in an entire industry to form a union with the right to negotiate a sector-wide agreement, which was further undermining the integrity of collective bargaining. Finally, concern was expressed at the follow-up given to the direct contacts mission to Guatemala in 2004, which had asked the Government to take all necessary legal and practical measures to end violence against unionists. However, since then, an attempt to murder municipal worker leader Leonel Garci´a Acuña, death threats against workers in export processing zones, bank workers and food and beverage workers' leaders, attempted burglaries of union premises, raids on union offices, armed attacks on the rural workers' union, and the murder of Pedro Zamora had occurred. Given the ongoing non-compliance with Convention No. 98, a special paragraph concerning the case was required.

The Worker member of Colombia indicated that the information, explanations and successive pledges by the Government of Guatemala had been heard repeatedly, but without any specific or positive results. The Committee of Experts' report and the constant complaints made by the Guatemalan trade union movement demonstrated that the situation in terms of freedom of association, human rights, collective bargaining, the right to strike and the right to organize had deteriorated significantly owing to the increase in anti-union practices in Guatemala. It was unacceptable for the Government to explain and make commitments without genuine change taking place and without any respect for the Committee's endeavours. The extensive report by the Committee of Experts was an invitation to the Government and employers to comply with the scant legal rulings that ordered unfairly dismissed workers to be reinstated, to expedite proceedings to punish breaches of freedom of association, to promote collective bargaining, to bring forward consultations on a new Labour Code and in general, to bring about an atmosphere of respect for freedom of association. He considered it unacceptable for the Government to publicly indicate that workers did not join unions because they did not believe in trade unionism and that they preferred other organizational activities such as cooperativism or solidarity movements. In reality, workers did not form unions because they were afraid of reprisals, being dismissed or even losing their lives.

The Government member of Mexico speaking on behalf of the Government members of the Group of Latin American and Caribbean countries (GRULAC), indicated that Guatemala had shown signs of receptiveness and cooperation with ILO supervisory bodies. It had received technical assistance missions and had requested cooperation with the Office in order to apply and comply with international labour standards. With that assistance, it had implemented measures seeking to address its problems and had institutionalized tripartite dialogue. GRULAC asked the Committee to take that into account when giving its conclusions. It further indicated that it reserved the right to give its opinion during the Conference plenary when the Committee's report was adopted and to express its opinion on the working methods and the establishment of the list of cases to be examined by the Committee.

The Government representative reiterated his Government's commitment to applying the Convention and to continuing to cooperate with the supervisory bodies. He indicated his interest in cooperating with the workers and employers in order to make headway in social dialogue as well as in submitting the information requested as part of the assistance mission and by the Subregional Office. He stressed that the Government did not deny the problems, but that it wished to share the efforts that it had made to date with the assistance of the ILO. He expressed the hope that that assistance would continue and stressed that the current situation was better than that of ten years earlier.

The Worker members stated that the discussion had allowed a review of the serious problems arising in Guatemala concerning the application of Convention No. 98. They believed that the facts presented by the Government were unconvincing and underlined that the information had been contradicted by the Worker member of Guatemala and other Worker members from the region, as well as by the Nordic Governments. The Worker members therefore reiterated the same requests that they had made to the Government over a lengthy period: to recognize the reality and magnitude of the problems set out by the Committee of Experts; to establish a legislative framework permitting the true exercise of the right to strike and the right to bargain collectively, both in the public and in the private sector, as well as in the export processing zones; and to guarantee the protection of trade unionists against anti-union acts. In the light of the picture painted by the Conference Committee, the Worker members stated that they envisaged requesting, at the subsequent reading of the conclusions, that the case be mentioned in a special paragraph of the Committee's report.

The Employer members observed that much of the discussion had related to matters concerning Convention No. 87. However, the Committee's conclusions could only address issues relevant to the Committee of Experts' observation and to Convention No. 98. They hoped that the report of the technical advisory mission would be available shortly. The Government should then prepare the necessary legislative draft amendments, in cooperation with employers' and workers' organizations, and report on them in time to the Committee of Experts, as a basis for examination by the Conference Committee.

The Committee noted the statements made by the Government representative and the discussion that followed, as well as the cases presented to the Committee on Freedom of Association. The Committee noted with concern that the pending problems had persisted for many years, involving cases of non-enforcement of reinstatement orders of dismissed trade unionists; the slow procedure related to sanctions for violations of labour and trade union legislation; the need to promote trade union rights in export processing zones (maquila enterprises); the large number of anti-union dismissals in both the private and public sectors; inadequate guarantees against procedures for the termination of civil servants; the low number of collective agreements and the violation of a large percentage thereof. The Committee took note with great concern of the acts of violence and intimidation against trade unionists contained in the comments by the International Trade Union Confederation. The Committee noted that a mission of technical assistance had visited the country in February-March 2007, and that it had formulated a number of recommendations for the Government.

The Committee noted the Government's statements including: (1) a request for ILO technical assistance on the different matters raised by the Committee of Experts; (2) the highlighting of the results of the work undertaken by the National Tripartite Committee in relation to such matters and the results of the rapid intervention mechanism in cases of violation of trade union rights in practice; and (3) information on different bills, legislative initiatives, and first drafts under discussion, as well as information on the organization of tripartite seminars in the maquila.

The Committee expected that the Committee of Experts would examine the report of the technical assistance mission and transmit to the present Committee the most important information on the application of the Convention. The Committee also expected that, in light of the mission's conclusions, the Government, in consultation with the employers' and workers' organizations, would rapidly take the necessary measures to make the required changes in law and practice, so as to overcome the problems related to the excessively slow procedures in cases of anti-union discrimination (in particular through the amendment of the Code of Labour Procedures), the reduced number of collective agreements and the remainder of the pending issues, including the situation of maquila enterprises (export processing zones).

The Committee reminded the Government of the imperative need to put an end to acts of violence against trade unionists and to ensure the security of all unionists who were victims of threats.

The Committee expressed the hope that it would be in a position, in the very near future, to note that progress had been made in law and practice, especially in the light of the Government's request for ILO technical assistance once again. The Committee requested the Government to take rapid action and to send a complete report to the Committee of Experts. Finally, the Committee requested the Government to accept the visit of a high-level mission before the next meeting of the Committee of Experts.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative (Minister of Labour and Social Planning) announced that the Government, employers and workers were in the process of negotiating a tripartite agreement and expressed the hope that it would allow solutions to be found to outstanding problems. He stressed the importance of control mechanisms as an instrument of cooperation for effective application of labour standards in his country, and noted that the Committee of Experts' comments offered guidance for improving application of international labour Conventions in order to achieve greater social justice and economic development. To make headway, assistance was required from the ILO, the member States of the Committee, the employers and above all the workers. As regards the Committee of Experts' requirement that complete information be provided on the application of Convention No. 98, he declared that, in accordance with the agreement reached following the direct contacts mission in 2004, the Subregional Office in Costa Rica would provide technical assistance by organizing a tripartite seminar on labour trade union rights in the maquila sector. According to the trade union public registry, there were nine trade union organizations relating to the maquila textile industry, and three collective agreements while others were currently being negotiated. The speaker stated that there was a project to develop a national policy for free advice for workers seeking to associate, which would be under the supervision of the Ministry of Labour throughout the country. This advice would include materials on union rights contained in national and international legislation, a description of legal requirements for the setting up of a trade union and the administrative paperwork required for recognition of its legal personality indicating the office in which the administrative statutes should be deposited. This documentation would be produced in at least two Mayan dialects, among the most widely read in the country. The speaker noted that the Government had initiated the setting up of a rapid intervention mechanism within the Tripartite Committee on International Labour Affairs for complaints related to trade union rights, which had already heard nine cases brought voluntarily by trade unions. The Government had also facilitated open dialogue so as to reach agreements in a climate of respect. The Government and the Tripartite Committee shared the aim of shedding light to complaints for violations of trade union rights. To this end, the Trade Union Confederation of Guatemala (UNSITRAGUA) had been invited to present to the Tripartite Committee all complaints presented to the ILO supervisory bodies. The organization had agreed and had attended a meeting in which it had presented its viewpoints as well as a list of issues. The speaker indicated that he would inform the ILO supervisory bodies shortly of the results and progress made.

The Government continued to promote social dialogue and the Tripartite Committee on International Labour Affairs met continuously, having reached major tripartite agreements on the following points:

- the Tripartite Subcommittee on Legal Reform had scheduled fortnightly meetings to study, analyse and approve legislative reforms which would help overcome obstacles to the exercise of trade union rights, trade union activities and union financial administration;

- the Tripartite Committee on International Labour Affairs had also met to study and report on court procedures relating to labour violations and social security and results were expected very shortly;

- the Ministry of Labour and the Tripartite Committee had maintained constant dialogue with the Labour Committee of the Congress of the Republic to allow its members to approve the bills agreed to in a tripartite manner. In this respect the Government had involved the legislative and judicial bodies in the work of the Tripartite Commission on International Labour Affairs, through their representatives, as they were the key participants in the system of labour relations in Guatemala. This was an example of the way it had worked through consensus in this process.

With regard to the Civil Service Bill, the Government representative pointed out that it was the result of consultations between the social partners and other sectors such as universities, research centres, municipal associations, the employers' sector, political parties, development councils, NGOs, foundations, associations and the trade union sector (unions, federations, confederations and trade union centrals of the public and municipal sectors). Since 2004, the Presidential Commission for the Reform, Modernization and Strengthening of the State and its Decentralized Bodies had convened the municipal and public sector trade unions to take part in workshop, in which 56 organizations had participated. In March 2005, the final version of the Bill had been presented to the Director of Human Resources of the government bodies and three analyses and evaluations carried out by the advisors of COPRE of the General Secretariat of the Presidency and of the Ministry of Labour and Social Insurance. The Bill had been presented to the Congress of the Republic and submitted to the Labour Commission which held meetings and organized a seminar to reach an agreement on the Civil Service Bill with the participation of representatives of workers' organized in trade unions, federations, confederations and centrals. Furthermore, the Civil Service Bill was one of the priorities of the Tripartite Sub-Commission on Legislative Reform of the Tripartite Commission on International Labour Affairs. It would be wise to mention that the Labour Commission of the Secretariat Congress of the Republic had recently pronounced itself against the Bill. By virtue of what was explained above, it could be demonstrated that the sectors concerned had been consulted on the above Bill; the results of these consultations would be communicated in the future.

Regarding the non-existence of sufficient guarantees in dismissal procedures for public servants, he stated that the justified termination procedure for employers in the public sector contained legal guarantees at the administrative level, that is the National Organization of the Civil Service, as foreseen in sections 79 and 80 of the Civil Service Act. Similarly, at the judicial level, guarantees were provided by the Labour Code, the Law on Unionization and Regulation of Industrial Action by State Employees and especially the Constitution of the Republic of Guatemala, as the country's supreme law.

Concerning the alleged failure of the General Labour Inspection in labour disputes in municipalities, he stressed that the General Labour Inspection was competent to act as a conciliation body. Section 191 of the Law Code provided that labour relations between public entities and their workers had to be governed by specific legislation on the matter (Civil Service Act or Municipal Service Act). In this respect, in 2005 it intervened at national level in 104 labour disputes between municipalities and their employees. Given the social importance of the labour disputes and after the creation of a Conflict Resolution Unit (RAC) within the Ministry of Labour, this conciliation activity had been delegated to the latter, which had already intervened on 43 occasions. The speaker asked that through this historical Conference, the importance of the Conflict Resolution Units be recognized in that they be granted the legitimacy that they deserved.

Regarding restrictions on the exercise of trade union rights by labour tribunals, the Government representative indicated that there were 509 appeals pending before a special Chamber of the Supreme Court against decisions related to reintegration. Such appeals were lodged by workers and employers and, until these cases were resolved, effective reintegration was not possible. According to Supreme Court statistics, there had been no complaints regarding the slowness of procedures on sanctions for labour law infringements nor had there been any complaints for violations of collective agreements on working conditions. There were 36 complaints for dismissal of trade unionists filed with the tribunals, of which 34 concerned the public sector and two the private sector.

As regards violence against trade unionists, the speaker asserted that there was an improvement in the climate of tolerance and harmony between the different actors. It was important to take into account not only the number of judgements rendered in cases concerning violence against trade unionists, but also the fact that the Public Ministry had carried out investigations in some 83 cases. According to data supplied by the Special Public Prosecutor's Office responsible for investigating offences against trade unionists, the bulk of complaints lodged by trade unionists referred to threats which were settled by alternative means. In some cases, the investigation could not rely on the cooperation of the plaintiffs. The speaker considered that progress was made by the fact that public ministry employees leading the investigations participated in two courses on ILO and the application of international Conventions.

In conclusion, the speaker stated that the government of Guatemala continued to make great efforts, and that the progress made was significant and demonstrated that the country was in the process of developing its labour legislation, but that it still needed the support of the various actors. He expressed the hope that Guatemala would not be the object of a special paragraph but on the contrary that confidence would be expressed vis-à-vis the Government through cooperation, such as that which had already been received from the ILO.

The Employer members thanked the Government for the information provided in its statement which assisted the Committee in understanding the situation underlying the Committee of Experts' observation. This case had been discussed several times since 1991 both under Conventions Nos. 87 and 98 and the Employer members questioned the practice of repeated discussions in the Conference Committee in cases where the Committee of Experts had actually been able to note progress. It was unfortunate that the Committee of Experts did not elaborate on the context and the facts of the case, which prevented a meaningful discussion. The Committee of Experts could not assume that the Conference Committee was familiar with the content of Committee on Freedom of Association cases. Nevertheless, the Committee's work had to remain based on the Committee of Experts' report.

The Worker members observed that this case of non-compliance with the rights to organize and bargain collectively had, unfortunately, become a chronic one, examined without interruption by the Committee of Experts since 1999. Over the years the ILO had expended considerable effort in addressing this situation: through direct contacts missions; the renewed provision of technical assistance measures, in 2005, with respect to Convention No. 87; and most recently the intervention by the ILO Director-General in connection with death threats aimed at a trade unionist. In spite of these efforts, the realization of trade union rights, particularly the right to bargain collectively, was constantly thwarted in Guatemala - a country that had become the second most dangerous in Latin America for trade unionists. The labour tribunals operated with delays of up to ten years. The non-enforcement of decisions, the lack of impartiality in some quarters of the civil service, the inadequate monetary penalties and the widespread corruption throughout the administration were well-known facts. The non-elucidation of cases of harassment, threat or assassination of trade unionists and the non-reinstatement of unfairly dismissed workers and unionists were real problems. To make matters worse, the labour inspectorate - which ought to constitute the last defence against such abuses - had just been stripped of its enforcement powers by the Constitutional Court.

The Worker members seriously doubted that the instances of social dialogue mentioned by the Government truly reflected the principles enshrined in Convention No. 98. The persistence of the problems noted would require the establishment, at different levels, of more effective dialogue mechanisms. A culture of dialogue was lacking at all levels. In Guatemala, violations of the principles laid down in Convention No. 98 were as prevalent in the private sector as in the public. At the municipal level, a third of the employees exercising trade union leadership were dismissed; similar methods prevailed in other branches of the administration, as well as in export processing zones, the agricultural sector - including the large farms belonging to those associated with trade union leaders - and in the informal economy. As a result, trade union density would stand at present at a mere 0.5 per cent of the economically active population, as opposed to 5 per cent ten years ago, and that only 17 per cent of the existing trade unions were able to successfully conclude collective agreements. Few were the collective agreements in force, whereas the number of trade unionists dismissed for attempting to bargain collectively was too great to count. Additionally, at least 60 per cent of the collective agreements concluded were not respected. This deplorable situation was the result of a series of practices that effectively thwarted the exercise of all trade union rights, including the rights to organize, strike, and enter into collective agreements. In light of the above, the Worker members recommended the establishment of an ILO permanent mission to Guatemala, as soon as possible and for the purpose of securing the observance of Convention No. 98 in national law and practice. They stressed that it was vitally important, for the time being, for the Government to produce exact figures, redouble its efforts to overhaul the judicial system and establish a bona fide system of social dialogue, and promote a culture of social dialogue and consultations at all levels.

The Worker member of Guatemala stated that the Tripartite Committee on International Labour Affairs had not achieved the progress expected. In addition, anti-union mentality was so deep-rooted that most trade unions were virtually reduced to nothing before they could act. In the informal sector, where there were neither employers nor collective bargaining, trade unions proliferated. It was frustrating to note that ten years after the conclusion of the peace agreement, unionization had declined from 5 to 1 per cent. At municipal level, trade unions were under attack. One-third of municipalities had dismissed those employees operating as trade unionists with the aim of eliminating trade unions. In EPZs, it was impossible to associate and form unions. Faced to investors who were looking for cheap labour, trade unions represented a means of protecting the application of regulations on safety and health at work, payment of social coverage and of appropriate salaries. In reality, there were two or three collective agreements in operation, applying to 3,000 workers. However, EPZs employed 100,000 workers. The famous codes of conduct which had been presented at the time as the solution to all problems, had proved ineffective. He said that a particularly representative example was the case of a bank whose management had systematically attacked the trade unions since 2002 and had mainly abstained from using the "alternative resolution of labour conflicts" framework, as recommended by the Ministry of Labour. Thanks to legitimate pressure by trade unions and ILO support, the law on the public service, which limited union rights and powers of negotiation, had not been approved by the Labour Committee of the Congress of the Republic. The climate of violence seriously affected trade unions. Every time trade union organizations demonstrated their opinions on issues of national importance, raids were carried out on their headquarters. In addition, on orders from the authorities, the labour tribunals and judicial authorities did not enforce sentences ordering the reintegration of workers unfairly dismissed for having attempted to form a trade union or for having supported claims. Furthermore, the penal code still included provisions which allowed penal sanctions against union leaders who had acted to defend their rights.

The Employer member of Guatemala stated that the case called for comments on the working methods of the Committee, firstly regarding its limits in drawing up its report. The Committee was not a tribunal and should not examine evidence or deliver judgements. The Committee was mistaken when it took allegations presented by trade unions at face value and did not take account of information provided by the Government. It carried out its evaluation and considered that problems persisted without mentioning progress mentioned by the Government. The Committee also did not take into account the current social dialogue, according to which it had been established that it was not necessary to develop a Code of Labour Procedure. All of the foregoing showed that the report of the Committee of Experts did not reflect the situation in Guatemala. The speaker requested that references to this Code be struck out in future and that progress achieved by the Government in the field of work be mentioned. Secondly, he noted that the inclusion of Guatemala in the list for this year undermined the credibility of control mechanisms as selection was based on reasons that went beyond ILO objectives. This was illustrated by the repeated inclusion of cases from the region, particularly from Central America, which created a flagrant regional imbalance, while leaving aside more serious cases. For two years, four countries from the region had been included in the list while a major trade agreement was being negotiated. In addition, the only issue of substance noted in the present case was the low level of unionization, which was due to the attitude of certain employers and to the judicial system. In this respect, he considered that union leaders had to show more positive leadership to ensure, along with the employers, the creation of new and better quality jobs. He asked the Committee to suggest that the Committee of Experts should deepen their study of the causes of this problem without making judgements which did not take into account the support of other parts of the ILO, which had made previous studies of the issue.

The Government member of Norway, speaking also on behalf of the Government members of Denmark, Finland, Iceland and Sweden, pointed out that national and international organizations had reported on numerous occasions anti-union dismissals in Guatemala. At the same time, there were several cases of failure to comply with court orders to reinstate dismissed trade union members and there was a general tardiness to impose penalties for breaches of the labour legislation. It was of utmost importance that legislation intended to secure trade union rights was applied in practice. If the principle of non-discrimination was not upheld, there was no ground for trade union activities. He expressed regret that steps taken to tackle these problems, having been addressed for years, had so far been unsuccessful, and he urged the Government to bring its law and practice into conformity with the Convention. The speaker also noted the indications that the new bill on the reform of the civil service did not fulfil the requirements of Convention No. 98. He urged the Government to make every effort to ensure that future legislation was consistent with the provisions of the Convention and, in order to guarantee that outcome, to continue the dialogue with the relevant social partners.

The Worker member of Norway observed that this was the ninth consecutive year that the Committee has discussed serious violations of Conventions Nos. 87 and 98 in Guatemala. Each year the Government has asked for time to rectify breaches of ILO Conventions. Yet, workers in Guatemala continued to be the victims of flagrant violations of labour rights. Upon the forced merger of two state-owned banks, corruption and mismanagement were rampant. When the trade unions started fighting the corruption, workers were harassed and dismissed and UNSITRAGUA leaders received death threats. However, the authorities did not take any action to protect trade unionists. There were many other cases in which unionists were harassed, dismissed or threatened when they began to organize and present collective demands. At the same time, court decisions ordering reinstatement of dismissed trade unionists were not implemented. The fact that they were only two trade unions with some 53 members in the maquila sector was highlighting the obstacles faced by workers in exercising their trade union rights in that sector. The speaker acknowledged that a new body had been created by the Government to promote alternative solution of conflicts. However, this body had limited resources and no enforcement authority. The Committee of Experts' comments showed that this measure was insufficient in the current situation. In spite of assurances of progress made by the Government, the Nordic workers agreed with the Committee of Experts that a discrepancy existed between law and practice. Trade unions were in reality prevented from organizing and concluding collective agreements. In light of the fact that the Government had continually made promises that it seemed unable to keep, the ILO should consider serious measures to rectify the situation.

The Worker member of Colombia remarked that although the case came before the Committee from year to year, the situation was worsening. He took note of the information provided by the Ministry on the measures that would be taken to guarantee freedom of association, but regretted that in reality, these guarantees were not applied either by the Government or by the majority of employers. He was concerned to see that the administrative and judicial authorities were ignorant of international labour standards and did not apply the few court decisions that were handed down to reinstate workers to their job. As regards the reference made by the Government and the employers to the subject of the lack of trade union representation, he stated that this reflected the absence of guarantees for the exercise of trade union activities. In fact, workers could not exercise their union rights without running the risk of dismissal. He asked the Government to appropriately protect workers in the informal sector who were victims of abuses by the authorities. He concluded by appealing to the Government to deepen their investigations on death threats against trade unionists.

The Worker member of India stated that the right to organize and the right to collective bargaining were fundamental rights of workers. He expressed support for the grievances of the Guatemalan workers. The Committee of Experts had found that current legislation and Government practice promoted anti-union discrimination in violation of Convention No. 98. The speaker urged the Government to heed to the recommendations of the Committee of Experts and to take the necessary measures to bring its law and practice into conformity with the Convention.

An observer representing the International Confederation of Free Trade Unions (ICFTU) stated that the percentage of union affiliation had declined from 5 to 1 per cent over the last ten years since the signing of the peace agreement. This demonstrated the lack of freedom of association in Guatemala. As regards the application of the Convention itself, he noted that the comments of the Committee of Experts were still valid regarding the insufficiency of legal decisions ordering the reinstatement of workers dismissed for trade union activity, the slowness of judicial proceedings in cases of infringements, the absence of protection for union rights, especially trade union negotiation, the violation of collective agreements and anti-union dismissals. Concerning anti-union dismissals, in particular, he said that when workers sought to set up trade unions, they were dismissed before the labour inspection had the time to intervene. The Government had not observed any of the recommendations made by the Committee of Experts. It had also not responded positively to complaints made by UNSITRAGUA to the Tripartite Committee on International Labour Affairs. Concerning the draft Civil Service Act, the Committee of Experts had given an unfavourable opinion as there had been no appropriate consultations on this text. The threats to trade unionists continued and there was no system of protection. In view of the above and of the seriousness of violations, he considered that the case of Guatemala should be the object of a special paragraph.

The Government representative stated that his Government recognized that there were problems in the country but that it was making great efforts to solve many of these problems. Certain trade union leaders appeared to be living as if they were still in a state of war, when what was needed was to look ahead and for each and every one to try to see what they could do together to overcome the difficulties of the current situation. He strongly emphasized the political will of the Government to promote social dialogue and consultation as means by which to achieve a State, in which the rule of law reigned, providing peace and harmony for all Guatemalans. The meeting the Government was presently holding with workers and employers to finalize the details of a tripartite agreement was evidence of this political will.

The Employer members stated that the Government of Guatemala appeared to be genuinely interested in a tripartite resolution to the issues at hand, and this willingness should be noted in the conclusions. There were clearly issues in the law and practice concerning Convention No. 98, but the Employer members sensed that the Government had the goodwill to address these issues. ILO technical cooperation might be useful in achieving full implementation of the Convention.

The Worker members stated that the discussion had brought out in the open the serious problems that the workers of Guatemala permanently faced. Even though measures had been taken to answer the comments of the Committee of Experts, they were both insufficient and inadequate and had not provided concrete answers to the non-compliance with Convention No. 98. The situation was still serious, with a great number of workers today still being members of a union but unable to conclude a collective agreement or have it respected, and still exposed to a diversity of pressures, including threats against their physical integrity. Considering that the situation was least favourable for the implementation of the Convention which resulted in poor level of unionization and low number of collective agreements, the Worker members asked the Government to recognize that the problem existed and to consider the footnote to be an urgent request for constructive changes. The Worker members called upon the Government to provide statistical information and to reinforce a permanent framework of social dialogue in the search of lasting solutions with the assistance of the Office which should visit the country and help to put in place a more permanent ILO presence.

The Committee noted the statements by the Government representative and the debate that followed. The Committee noted with concern that the pending problems related to cases of failure to comply with court orders to reinstate dismissed trade union members; tardiness of the procedure to impose penalties for breaches of the labour and trade union legislation; the need to promote trade union rights in export processing zones (maquila enterprises); numerous anti-union dismissals in the private and public sectors; inadequate guarantees in the procedure for the termination of public servants; the small number of collective agreements and the violation of an important number of them.

The Committee took note of the Government's statements according to which the national tripartite delegation was in the process of negotiating a tripartite agreement which would help resolve the problems raised; three collective agreements had been concluded in the export processing zones sector, others were being negotiated and a seminar on labour and trade union rights in the export processing zones sector was planned; nine cases had been examined in the framework of the rapid intervention mechanism in cases of denunciations relating to trade union rights and UNSITRAGUA had already presented to the tripartite committee its denunciations of violations of trade union rights. The Committee took note of the statements on the outcome of the activities of the tripartite committee mentioned by the Government, and that the Labour Committee of the Congress had issued a decision against the Civil Service Bill. The Committee finally noted the figures provided by the Government on the number of conciliations and the number of actions for protection of constitutional rights (amparo) against decisions ordering or not ordering reinstatement, and the information that it had no knowledge of denunciations due to delays in the proceedings concerning sanctions or violations of collective agreements.

The Committee emphasized that the pending problems represented serious violations of the Convention. The Committee further noted the grave concerns raised in respect of the continuing climate of violence and the serious impact that this had on the trade union movement as a whole, as well as the delays in judicial proceedings concerning appeals submitted by dismissed trade unionists.

The Committee requested the Government to take the necessary measures without delay to bring the law and practice into full conformity with the Convention in the near future, in both the public and private sectors, and to send a complete report to the next session of the Committee of Experts. The Committee invited the Government to pursue its negotiations with the social partners with a view to establishing the appropriate mechanisms at all levels for full social dialogue and to considering the ways in which a stronger presence of the ILO in the country could facilitate this process. The Committee also urged the Government to adopt further measures for the effective protection of the rights set out in the Convention for workers in export processing zones. The Committee expressed the hope that in the very near future it would be in a position to note progress and recalled that the Office's technical assistance was available to the Government.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative (Minister of Labour and Social Protection) recalled that his mandate had begun on 27 January 2003 and would go until 14 January 2004, after elections. His statement should be considered in the context of previous debates of the Conference Committee and in particular of the direct contact missions of 2001: many of the recommendations that had been made at the time had been implemented and others were in the process of being implemented.

The Government representative began his intervention by recalling the profound structural crisis which Guatemala was going through. The economic model, based on the exploitation of agricultural products with very low added value, which had predominated since independence was coming to an end. The only asset Guatemala had to offer in order to compete in international markets, such as the coffee market, was the low cost of labour, in particular that of indigenous peoples. This model was not ethically, politically or economically viable and had led to a culture of political authoritarianism.

Since the independence of Guatemala, in 1821, the present Constitution - adopted 17 years ago - has been the longest one in force in the history of the country and it was the first time that a democratically elected president succeeded another democratically elected president and would also be succeeded by free and democratic elections. For the first time in 12 years, Guatemalans had been living in democratic conditions.

The speaker referred to the questions raised by the Committee of Experts in their observation of 2002. Concerning the information requested by the Committee of Experts on the procedure for collective bargaining in the public sector, regulated by Legislative Decree No. 35-96, the Government representative indicated that section 5 provides for two ways of proceeding in collective bargaining: through direct negotiation with the relevant authority, or, through the judiciary channel, with a representative appointed by the Attorney-General. In the speaker's view, the procedure had been in practice during the period covered by the observation, given that six collective agreements on working conditions in the public sector had been validated.

Regarding the lack of enforcement of final court decisions ordering the reinstatement at work of workers dismissed on grounds of trade unionism, the speaker indicated that Guatemala had three independent branches of power: legislative, executive and judicial. Interference between the three was prohibited and could be subject to criminal prosecution. At the request of the Committee of Experts to amend section 414 of the Penal Code in view of strengthening penalties for disobeying court orders, the speaker stated that the Minister of Labour was promoting the creation of a State Commission on Labour Relations and that the initiative for reform of the Penal Code was being examined by the Tripartite Commission of International Labour Affairs since 24 April 2003.

Regarding the request by the Committee of Experts to furnish the number and nature of penalties which the Ministry of Labour had imposed for non-enforcement of final court decisions for reinstatement, the speaker admitted that no penalties had been imposed as of yet.

Regarding the Committee of Experts' referral in their observation to comments by the Trade Union Confederation of Guatemala (UNSITRAGUA), the speaker stressed that all the necessary measures were being taken to update the reports due to the Committee of Experts and that the number of staff in the Ministry of Labour responsible for this had been increased for this purpose. Furthermore, the Ministry of Labour was very willing to apply the necessary measures whenever called on to do so by the judicial authority.

In its observation, the UNSITRAGUA had referred to the compilation of blacklists by a company of trade unionists and the dismissal of union leaders from the Ministry of Health and Welfare, two municipalities and one enterprise. In this respect, the speaker stated that, in February 2003, a copy of the denunciation concerning the compilation of blacklists had been sent to the Attorney-General of the Public Ministry. The speaker indicated that the general labour inspection had no record of the denunciation concerning the dismissal of union leaders and had asked for details from the persons involved. The dismissal of union leaders from enterprises was handled in court.

Furthermore, UNSITRAGUA had mentioned the failure to reinstate, as ordered by the Ministry of Labour, worker unionist-members who had been fired by a banana enterprise. In this respect, the speaker referred to the response given in 2002. The present administration had not acted on the collective suspension of workers' contracts ordered by the previous government. According to information the Ministry of Labour had obtained from the respective employers, the 37 persons mentioned by UNSITRAGUA in this regard apparently no longer worked for those enterprises. In the end, in accordance with the decision of the competent judge, the termination of the contract and wages payments to workers were authorized, and the workers were granted severance pay. In any case this was an issue that could have been addressed in court.

Another of the observations by UNSITRAGUA referred to infringement on the right to collective bargaining by Government Agreement No. 60-2002 of the Ministry of Finance. In this respect, the speaker said that the Court on Constitutionality, the highest judicial authority, judged - by a court decision of 3 January 2003 - in favour of the workers thus bringing to naught the challenged portion of the Government Agreement mentioned. The speaker stated that, in time, the Committee of Experts would receive a copy of the Government Agreement.

Regarding full implementation of Articles 4 and 6 of Convention No. 98, the Government representative referred to what had been done in 2002. As had been explained, the public sector had two possible means of negotiation. For example, in the case of the social security administration, the competent authorities had been obliged to negotiate, by means of a court resolution, which involved fixing wage increases to be applied. In the Roads Administration a procedure under way to authorize a strike would soon be concluded.

In its 2002 observation, the Committee of Experts had heard comments by the International Confederation of Free Trade Unions (ICFTU) on the anti-union behaviour in maquilas in the free-trade export zones. In this respect, the speaker explained that an administrative procedure on the issue by general labour inspection had concluded with the imposition of penalties on the infractor enterprises, requesting that the Ministry of the Economy withdraw their tax exempt status, in accordance with the Export and Maquila Promotion and Development Act. The Ministry of the Economy had issued a press communiqué, published on 4 June 2003 in Prensa Libre, warning all enterprises of their obligation to abide by labour laws and informing them of the procedures initiated against some enterprises and of the penalties that would be imposed. The speaker added that he had no information on the entering into of new collective agreements in the maquila sector.

To end his intervention concerning the issues raised by the Committee of Experts in their observation of 2002, the speaker explained that the draft amendments to the Labour Code were pending approval in Congress.

The speaker also informed the Committee on other measures adopted by the Government in 2003. In the short term, it was expected that, in the course of 2003, the Commission on Labour Relations - composed of the Executive, the Supreme Court, the Labour Commission of the State Congress, the Public Ministry and the Office of the Attorney General - would pursue their efforts. The Commission on Labour Relations in particular would address the social aspects of the free-trade negotiations. In this respect they had proceeded to suggest the repealing of the tax exemptions from those export enterprises that did not respect labour rights.

The National Banana Commission, as in other countries of Central America and in Panama, should create a framework for resolving the numerous social problems in the sector. That Commission had proved to be a leader in the formulation of two collective agreements.

The Government representative explained that the Government elected in November 2003 should pursue the legislative reforms under way. Three substantive reforms would affect labour relations. Legislative Initiative No. 2855 would address issues of procedure by reducing the average length of a trial from 28 to six months. Labour trials should be made to increasingly incorporate oral procedures, as had been done in the latest reforms for criminal trials. Legislative initiative No. 2857 would address reform of the Labour Code in order to make it consistent with the international commitments made on such matters as child labour, domestic labour and sexual harassment. Legislative Initiative No. 2858 aimed at expanding the right to compensation and to renew the reinstatement of workers who had been unjustly dismissed. The speaker recalled that since 1954 workers had lost the right to automatic reinstatement.

The speaker referred to the restructuring of the Ministry of Labour. On the one hand, horizontal coverage would be expanded with 22 new offices to be opened at the department level. On the other hand, vertical coverage would be increased with special attention to child labour, domestic work, forced labour and women workers. Furthermore, staff posts in the Ministry of Labour would be reclassified, with a 35 per cent increase in posts held by workers and an increase in the number of labour inspectors in the countryside.

Among the measures to be taken in the medium and long terms, the speaker mentioned the creation of a "basic course on labour rights". This would be introduced as of 2005, as a compulsory course from the ninth to the twelfth grades and cover the fundamental rights at work. With the help of the Relacentro project (Freedom of association, collective bargaining and labour relations in Central America, Panama, Belize and the Dominican Republic), a university-level technical course in labour relations had been formulated for the training of labour inspectors. Furthermore, it was expected that, with the help of the Prodiac project (Tripartism and social dialogue in Central America - Strengthening of processes for democratic consolidation), tripartism would be expanded at the department level. The speaker also drew attention to the approval of the National Languages Act, under legislative Decree No. 19-2003 (published on 26 May 2003) which established the legal procedures to follow for labour inspectors who did not speak the Mayan languages, of which there were 23 in Guatemala.

In conclusion, the Government representative emphasized his commitment to send the ILO all the requested information. Guatemala welcomed the Office to continue its activities and expand them, from their headquarters in Geneva as well as from the regional offices, with services in different geographical areas in the field as well as with the activities currently under way.

The Employer members recalled that cases on Guatemala had been discussed in the Conference Committee for eight consecutive years, whereas the situation with regard to Convention No. 98 was before the Committee for the last time in the mid-1980s. The Committee of Experts had commented on Convention No. 98 several times in recent years, including in 2002, when it was able to note some developments with interest and even with satisfaction. This was also the case with regard to Convention No. 87 this year. The Employer members recalled that one of the points raised by the Committee of Experts was the question whether there was a consultation procedure that would enable the trade unions to express their views in the process of the preparation of the budget. The Government had stated that there was such a procedure, but the experts requested fuller information. The speaker noted that the Minister had provided now some indications in this regard, but that it was necessary to receive them in a more detailed and written form. The second point raised by the experts concerned the non-compliance with judicial orders to reinstate illegally dismissed workers. In this regard, the experts had asked the Government to make the existing penal sanctions for non-compliance more stringent. The Employer members took note of the Minister's statement that the Government, in principle, agreed with this view. In addition, the Minister stated that the competent national authorities were already authorized to take the necessary measures to ensure compliance and that tripartite consultations were under way to discuss the problem. In the Employer member's view this was the right approach. On a general note, the Employer members observed that it was not clear what constitutes "adequate protection" against anti-union discrimination under Article 2(1) of the Convention and that this would largely depend on the respective national legal systems. It was therefore doubtful whether the Committee of Experts could establish a one-size-fits-all approach. It was however important that consultations on this issue were being held and, naturally, that the objective of appropriate protection was being attained.

With regard to the issues raised by UNSITRAGUA, the Employer members stated that difficulties concerning the length of judicial proceedings existed throughout the world and that there were no specifications given in the report as regards the length of proceedings in the present case. They recalled the experts' request to the Government to examine alleged cases of anti-union discrimination and to take the necessary measures if they had in fact occurred. The speaker noted that the Minister had provided information replying to the questions asked by the Committee of Experts. However, as many questions remained open, the Government should provide a detailed written report in reply to the Committee of Expert's requests in order to allow for a proper assessment. In addition, the Employer members pointed out that the 2002 observation gave no information on the content of Governmental Agreement No. 60-2002 to which it made reference. They further noted the recent decision of the Supreme Court in favour of the workers, which was mentioned by the Minister. Regarding the comments of the National Federation of State Workers' Unions of Guatemala (FENASTEG) on the denial of collective bargaining for the public service, the Employer members stated that the budgetary procedures were not the same in every country and that the budget naturally would have to be amended if collective bargaining was successful. The comments submitted by ICFTU concerned similar issues as already taken up by the experts, inter alia, illegal dismissals, non-compliance with reinstatement orders, and anti-union conduct in export processing zones. The Employer members noted the Government representative's statement to the effect that negotiations with the employers were underway and requested that the Government give detailed written replies to the observations made. Referring to the indications given by the Government representative with regard to the reform of labour laws and institutions, the Employer members asked the Government to indicate a time schedule for the adoption of new texts and to send copies of the respective draft bills for examination by the Committee of Experts. The announced increase of staff in the Ministry of Labour and the promises to speed up the length of court proceedings were welcome, but the information given by the Government representative had been very general in nature. However, bearing in mind that the recovery from the civil war would certainly take time, it showed that the country was on the right way to reform. The Employer members encouraged the Government to provide a full and complete report to the Committee of Experts on the outstanding issues and hoped that further progress would be possible soon.

The Worker members welcomed the information provided by the Government representative, particularly on the measures taken at the institutional level. In their view, these indications were binding on the Government. Nevertheless, in the same way as the Employer members, they called for the information to be provided in writing.

As they had done the previous year, the Worker members deplored the fact that the country constantly appeared before the Committee, either with regard to Convention No. 98 or Convention No. 87. At the Committee's previous session, they had urged the Government to take urgent measures and to show a real will to protect trade union leaders and activities through the establishment of a climate of peace and security, by guaranteeing the operation of an impartial, rapid and effective judicial system and by strengthening social dialogue. In particular, they had emphasized the need to bring an end to the total impunity which reigned in respect of all anti-trade union acts in Guatemala.

As indicated in the report of the Committee of Experts, the Worker members denounced the absence of consultation procedures with the workers in relation to the formulation of the national budget. This situation, which resulted in a veritable denial of the right to collective bargaining of State employees, was aggravated still further by the provisions of Legislative Decree No. 60-2002. They also denounced the failure to reintegrate workers who had been dismissed for trade union reasons, a subject on which the Government had still not provided any tangible information. Finally, they denounced the slowness of the judicial system whenever it was called upon to examine violations against trade unionists, another issue on which the Government had not provided any tangible elements of information. In export processing zones it was still impossible to negotiate collective agreements, and there was no indication of any change in this situation. Finally, the complete impunity for acts of violence perpetrated against trade unionists led to the unfortunate conclusion that the situation was continuing to deteriorate.

The Worker members therefore called for a high-level mission, led by a well-known independent person. The many direct contacts missions which had visited the country up to now confirmed that there had been no positive developments. For this reason, over and above the simply justifications and promises heard from the Minister of Labour, a high-level mission appeared to be necessary today if it was wished to see the emergence of the right to collective bargaining and if the right of association was to be no longer systematically trampled underfoot in the country.

The Worker member of the United States recalled that Guatemala had been under review in the Conference Committee for most of the last decade for non-compliance with Convention No. 87, and this year for non-compliance with Convention No. 98. There had been conventional wisdom that with the labour law reforms of 2001 many of Guatemala's labour rights problems had gone away. However, in terms of both legal norms and practice, nothing could be further from the truth. The situation was of particular concern to the North American trade union movement, as a petition for review of Guatemala's compliance with core labour standards under the United States General System of Trade Preferences was pending before the United States Trade Representative and Guatemala was seeking inclusion in any future Central American Free Trade Agreement with the United States.

The Worker member stated that the Committee of Experts' report specifically mentioned the lack of effective remedies and reinstatement for victims of anti-union firing and discrimination. Nothing presented by the Government representative indicated that Guatemala had strengthened the provisions of section 414 of the Penal Code. But even assuming that this had been done, section 212 of the Labour Code maintained a loophole through which employers could easily revisit fines in another parallel judiciary process. The United States State Department, Human Rights Report of 2003 clearly stated that despite the Labour Code providing for reinstatement of illegally dismissed workers within 24 hours, employers would, in practice, file a series of appeals or simply defy reinstatement orders. The failure of the Government of Guatemala to guarantee a collective bargaining system that is faithful to Convention No. 98 was born out by the statistics. For example, there were zero collective bargaining agreements in Guatemala's export processing zone and maquiladoras employing well over 100,000 workers. Unchecked employment intimidation and restrictions on union representatives' access to this zone had prevented the negotiation of collective contracts in this sector, including where there had been union recognition and registration. In sum, several structural elements subverted collective bargaining in Guatemala: (1) an ineffective labour court, labour inspection and labour enforcement regime to ensure collective bargaining integrity, as stated in the 2001 report of the United Nations Verification Mission in Guatemala (MINUGUA); (2) employer-dominated "solidarista" organizations had the lock on 170,000 workers in 400 enterprises also precluding legitimate collective bargaining; (3) the Labour Code's requirement of 50 per cent plus one for the authorization in an entire industry in order to form a union with the right to negotiate a sector-wide agreement; and (4) as stated by the Experts, violence against trade unionists continued unabated. Over the last three years, MINUGUA had reported well over 158 death threats and at least six assassinations. Impunity remained a problem, as no progress had been made in prosecuting those criminally responsible for physical assaults committed against union activists. The speaker joined the Worker's spokesperson in urging the Conference Committee to recommend a high-level mission to Guatemala as soon as possible.

The Worker member of France stated that the case of Guatemala gave the impression of an absent State which underwent events without being capable of transforming them. She added that the setting up of export processing zones by the Government of Guatemala was indeed a public policy organized by the State in order to attract foreign investors. The State had modified its fiscal, customs and external trade policies, and had provided the necessary infrastructure to maquiladoras enterprises. How then could we accept that it does not impose the respect of Convention No. 98 which is reflected in part in national legislation? She pointed out that in such enterprises maquiladoras, there were workers who would have liked to organize and negotiate the terms of employment through collective agreements. Unfortunately, export free zones were zones free from freedom of association and the right to collective bargaining.

The Committee on Freedom of Association expressed its concern with regard to the aggressions and persecutions of trade unionists in the export processing zone of Villanueva. In a number of enterprises, salaried workers experienced pressure and propaganda because they were not members of a trade union whilst numerous trade union leaders and trade unionists received death threats, obliging them to resign. The Committee on Freedom of Association had specifically requested the Government to inquire into such acts of violence in order to bring to trial guilty persons. And even if the guilty persons were often known, nothing was made to bring them to trial. On the other hand, two trade union leaders of one of the above enterprises were interrogated by men who claimed to be members from the Public Attorney's office.

With respect to the press releases which had been issued by the Government, the speaker expressed her surprise that they were used as an instrument of public policy. She added that up to the present time the threats of lifting the fiscal privileges of maquiladoras enterprises had not changed the climate of violence. There was no record that the Government had signed any collective agreement in the export processing zones. And the Government should apply dissuasive penal sanctions if it had decided to exercise economic pressure on those companies which did not observe the right to work. As mentioned by the Committee of Experts in their report, "freedom of association could only be exercised in a climate that was free from violence, pressure or threats of any kind against the leaders and members of trade unions". She concluded by saying that the right to collective bargaining should apply everywhere on the territory of Guatemala including in export processing zones.

The Worker member of Guatemala referred to the difficulties encountered by public sector employees including municipal workers and workers employed in local authorities in exercising fully their right to collective bargaining. Collective agreements which were eventually signed were not observed especially with respect to wage increases. Municipal mayors ignored judicial decisions, and the State lacked the machinery to penalize lack of compliance of such decisions. The speaker urged the amendment of section 414 of the Penal Code, and the application of the requests formulated by the Committee of Experts with regard to Articles 4 and 6 of Convention No. 98. In Guatemala, an anti-trade union attitude continued to persist especially in the export products sector.

The Worker member of Paraguay denounced the gravity of the situation faced by the workers of Guatemala, who were denied their right to organize, particularly in the rural sector. In addition to violating Conventions Nos. 87 and 98, the rights of workers set out in the Protection of Wages Convention, 1949 (No. 95), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Forced Labour Convention, 1930 (No. 29), were also being denied, since workers who sought to organize did not receive the average wage, were assigned to the worst areas of the workplace and were obliged to perform overtime. He reiterated that all these measures were violations of the human rights of workers.

The Worker member of Brazil said that the signing of the Peace Agreement had given rise to hopes, but it was easy to see that the above Agreement had not yet reached the workplace. Trade unionists continued to be murdered, to disappear and to be kidnapped, as indicated by the reports of the Committee of Experts and the Committee on Freedom of Association. With regard to the application of Convention No. 98, it was a matter of institutional concern that the judicial system in Guatemala was not sufficiently agile and effective in its action to afford proper protection for trade union activities. As indicated by the observation of the Committee of Experts in 2002, trials were slow and not brought to a conclusion, and the fines were derisory for enterprises engaging in anti-union activities. Trade union leaders were frequently threatened, intimidated and imprisoned. The Committee on Freedom of Association had warned that the frequent arrest of trade union leaders in such circumstances was a characteristic of an environment in which freedom of association was restricted. With regard to the murder of four trade union leaders in 1994, despite all the comments that had been made, it was still not known whether or not those responsible had been identified and punished. The Committee on Freedom of Association also indicated in paragraph 56 of its Digest of decisions that justice delayed was justice denied.

In addition to these structural problems, the annual reports of the Committee of Experts referred to new anti-union practices, such as the use of blacklists in certain enterprises, the dismissal of trade union leaders in the public sector, as had occurred in the Ministry of Public Health and Social Assistance, and of unionized workers in certain institutions. The list of anti-union activities was even longer in export processing zones and included physical violence and the dismissal of workers who endeavoured to establish trade unions and initiate collective bargaining. The ratification of Convention No. 98 obliged States to enter into collective bargaining in the public sector. Yet the observation in 2002 indicated that Decree No. 85-96, on the pretext of budgetary considerations, prohibited collective bargaining in the public sector. The national authorities had to change their attitude and guarantee consultation with trade union organizations.

The Worker member of Colombia regretted that the Committee had to deal once again with the issue of freedom of association in Guatemala, as the Government and a few employers' organizations continued to violate Conventions Nos. 87 and 98 and other ILO standards as indicated in the report of the Committee of Experts. He indicated that the situation of workers and trade unions in Guatemala had worsened in spite of the declarations made by the Government on the measures taken to bring into conformity national legislation with ILO Conventions and Recommendations. He pointed out that one grew accustomed to the declarations of successive governments that they were deploying huge efforts to safeguard the rights of workers, before the Conference Committee. However, he underlined that if any of the successive governments had fulfilled their promises, workers' conditions in Guatemala would have changed by now.

The speaker recognized the importance of the declarations made by the Government representative and expressed his wish that the Conference Committee verify that the Government had complied with the obligations made in their intervention, at its forthcoming session. To conclude, the speaker supported the proposal of the appointment of a high-level mission.

The observer representing the Word Confederation of Labour said that laws existed in Guatemala respecting the right of association and collective bargaining, even though they contained gaps and weaknesses. The fundamental problem was the total lack of political will and public and private decisions to respect, comply with and ensure observance of trade union rights. State entities and private employers implemented their policies and strategies in disregard and violation of the rights set forth in Conventions Nos. 87 and 98. He supported the appointment of a high-level mission

The Employer member of Guatemala expressed concern at the working methods of the Conference Committee as a result of which Guatemala had been included once more on the list of individual cases. He recalled that the application of Convention No. 87 had been discussed the previous year and that efforts had been made this year to include in the list the case of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). On certain occasions a desire had been expressed to mention Guatemala in a special paragraph of the report of the Conference Committee, despite the fact that the Committee of Experts had included Guatemala among the cases of progress. Questions could be raised on the obscure motives for selecting cases from Latin American countries, and in particular Central American countries, in the Conference Committee. In his view, such actions provided grounds for questioning the credibility of the Organization's supervisory mechanisms.

With reference to the technical aspects indicated by the Employer members, he stated that the tripartite consultations on conflict resolution and legislative proposals had not produced results. The authoritarian approach of the authorities could provide an explanation to this, as the Government representative had intimated. He hoped that social dialogue would be renewed as it was the best way to mend the social fabric in Guatemala. The Government should try to prevent any confrontation between the social partners instead of fostering it.

A Worker member of Norway, speaking on behalf of the Norwegian trade unions and workers in other Nordic countries, regretted that the Conference Committee again had to discuss serious violations of the rights of the Guatemalan workers. Last year the Government had promised to improve the situation through the enforcement of new labour legislation, but violations of the right to collective bargaining had continued and the situation had become even worse. The Nordic unions fully supported the critical comments from the Committee of Experts on the need to amend the Labour Code and its requests for more information on why there was such slow progress in securing the right to collective agreements for workers in the public and private sectors. According to the speaker, the enforcement of Guatemalan labour laws was characterized by impunity. Illegal firing of workers for union activities, blacklisting, death threats and even murder went unpunished. Where the courts deemed cases of violations of labour rights illegal, judgments were rarely enforced.

With regard to the situation of the banana workers union SITRABI, the speaker recalled the events of 1998 when union leaders were kidnapped, forced to resign and to publicly call for the end of a strike. Once again, workers attempting to engage in collective bargaining had been fired and had received death threats. The administration of the plantation concerned refused to send union dues to the union for over a year and had falsely accused union members of criminal activity. Finally, the owner of the plantation refused to promote respect for labour rights by stating that the plantation was an independent legal body. A similar situation had occurred in the Pepsi Cola enterprise Embotelladora la Mariposa, where a number of workers had been fired for union activities, while others where intimidated. Although the court issued a reinstatement order on 20 January 2003, the workers concerned had not been rehired and experience showed that this was unlikely to happen. The fact that the Government had not deemed it necessary to reply to the comments by ICFTU and UNSITRAGUA was another indication in that direction. Referring to the situation in the maquila industry, the Worker member recalled that it was virtually impossible to form a union and to negotiate collectively in that sector. Workers planning to form a union would be fired immediately and where unions had been formed, factories were closed and reopened under another name. The speaker concluded by stating that the serious nature of the large number of violations of Convention No. 98 and the fact that these had occurred for many years should lead the Conference Committee to take the most serious steps to ensure the right to collective bargaining. A first step was to send a high-level mission to Guatemala in the very near future.

The Government representative referred to his preliminary statement in which he had provided information on many of the questions raised during the discussion. The application of the procedure established by Section 5 of Decree No. 35-96 might give rise to difficulties. The limitations on wage increases through collective bargaining in the public sector derived from the commitments adopted to the International Monetary Fund, which did not authorize wage increases in the public sector without new tax revenues. In any case, it should be noted that six collective agreements had been concluded in the public sector, and one was being negotiated with the employees of the Labour Ministry.

The legislative reforms should be approved in the course of the current year since the Government wished to conclude commercial agreements and continue to benefit from the tariff privileges accorded by the legislation of the United States. He emphasized that among other measures, his Ministry had promoted in Congress the reintroduction of the right to reinstatement of workers who were dismissed without due cause. The Ministry of Labour ensured the implementation of matters which fell within its competence.

As to the problems in the maquilas, the Special Public Prosecutor - created following the direct contacts mission of 2001 - was investigating crimes against trade unionists. The Government had been trying to sanction the export processing enterprises which had not complied with labour legislation by issuing fines, the suspension of fiscal privileges and even the closure of enterprises. The Congress of the Republic should adopt the Labour Code reforms which had been submitted for its approval by the Government.

Of the two 250,000 Guatemalans who had died during the civil war, 14,000 were trade unionists. The report of the Commission on the Clarification of History drawn up in the framework of the peace process with the assistance of the United Nations gave a full and exact account of the particularly tragic and difficult circumstances from which Guatemala had suffered. It was necessary for the whole of Guatemalan society to overcome the violence and eliminate impunity: the judicial system was also a reflection of what had happened during the civil war, as many judges and labour lawyers had also died during that tragic period.

Since 2000, the Government of Guatemala had extended an open invitation to United Nations organizations, without reservations with regard to international supervision. Nevertheless, certain recommendations which had emanated from the direct contacts mission of 2001 were still being implemented, and that elections would be conducted in 2003. The moment was not appropriate to carry out new missions.

He reiterated his commitment to introduce structural and institutional reforms (such as the reclassification of posts in the Ministry of Labour and the reinforcement of labour inspection) since, in order to resolve the problems, it was not sufficient to adopt new laws, but they also had to be implemented in full.

The Worker members stressed that the information presented orally by the Government be transmitted in writing to the Committee of Experts at a later stage. They took note of the economic context of the country but reiterated that the present state of the economy could not be invoked as a legitimate excuse for deferring the application of ratified Conventions. The Worker members were of the view that the information presented orally besides the importance of their completion by written information, did not meet their concerns and criticisms which were however explicit. In reply to a question from an Employer member of Guatemala, the Worker members reiterated that the case of Guatemala was yet again inscribed on the agenda because of the persistent serious situation encountered by workers and not for any obscure motivation. The Worker members requested the dispatch of a high-level mission to Guatemala in order to reflect the concerns of the international community before the national authorities on the one hand. On the other, the high-level mission would direct the authorities of Guatemala into taking the concrete measures to put a stop to the gross violations of freedom of association, which had been denounced for such a long time.

The Employer members noted that the Government representative, in his reply, had provided some information according to which there was an intention to ensure maximum length of court proceedings of six months. He also had stated that the reform of the Labour Code was in itself not sufficient, but that the effects of the civil war would also require institutional reform. Nevertheless, it was still necessary that the Government provide a detailed and precise report on all these issues. Recalling that as a result of the 2001 direct contact mission, the Committee of Experts was able in 2002 and 2003 to note certain positive developments with satisfaction, the Employer members noted that the Government representative had expressed no objection with regard to another such mission. Under these circumstances, one should pursue what the Government was ready to accept. A direct contact mission should be sent to the country for consultations on the spot.

The Committee noted the oral statement by the Minister and the discussion that followed. It also noted that the comments of the Committee of Experts referred to the absence of adequate protection against acts of anti-union discrimination in both law and practice, as well as to obstacles to collective bargaining in the public and private sectors (including in export processing zones). The Committee also noted that various trade union organizations had submitted comments on the application of the Convention which also included allegations of acts of violence against trade unionists and the dismissal of trade union members. The Committee noted that the Government representative had referred to certain legislative and administrative initiatives to improve the application of the Convention. The Committee called upon the Government to accept, at a more appropriate time, a direct contacts mission led by a well-known independent person. The Committee requested the Government to send, in time for the next session of the Committee of Experts, a detailed report containing precise information on the matters raised by the Committee of Experts, exhaustive replies to the comments submitted by the workers' organizations and information on the State Industrial Relations Commission announced by the Minister and on its first results. The Committee urged the Government, in consultation with the social partners, to take the necessary measures in law and practice without delay to guarantee the full application of the Convention. The Committee hoped that practical progress would be seen in the very near future.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2023, which relate to matters examined in the present comment. The Committee also notes that the observations concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the International Trade Union Confederation (ITUC), on the one hand, and the Autonomous Popular Trade Union Movement: Global Unions of Guatemala, on the other, received on 27 and 29 September 2023, respectively, contain elements relating to the application of the present Convention, examined in this comment. The Committee notes that the observations of the Autonomous Popular Trade Union Movement: Global Unions of Guatemala also contain numerous allegations of anti-union discrimination and obstacles to collective bargaining in the private and public sectors. While noting the Government’s responses to these observations, the Committee requests it to continue its specific follow-up on each of the cases indicated by the trade unions with a view to ensuring the application of the guarantees set out in the Convention.

The Committee notes that, since its previous examination of the application of the Convention by Guatemala, the Governing Body has continued the follow-up to the ILO 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” (GB/346/INS/10 and GB/349/INS/10(Rev.1)). The Committee observes that the Governing Body noted in particular the joint mission to Guatemala by the ILO, the International Organisation of Employers (IOE) and the ITUC in September 2022 to follow up the technical cooperation provided by the ILO in relation to the application of the road map on freedom of association approved by the Government in 2013. The Committee notes that the mission and the members of the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) jointly identified a series of priority actions, several of which are related to the application of the present Convention.

Submission of a complaint under article 26 of the ILO Constitution

The Committee notes that at its 349th Session the Governing Body declared receivable a complaint filed by various delegates under article 26 of the ILO Constitution alleging non-observance by Guatemala of this Convention and of Convention No. 98, the content of which will be examined by the Governing Body at its session in June 2024 (GB.349/INS/19/2).

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the labour inspection services. In its previous comments, the Committee referred once again to the effects on protection against anti-union discrimination of the implementation of Legislative Decree No. 7/2017, which restored the power of the labour inspection services to impose penalties. The Committee notes the Government’s indication that the General Labour Inspectorate applies a special investigation procedure for freedom of association and collective bargaining, which contains a series of methodological and technical recommendations. The Government adds that, between 1 January 2021 and 16 August 2023, the General Labour Inspectorate: (i) dealt with 211 cases relating to trade union organizations and collective bargaining; (ii) noted 36 violations of the law in respect of freedom of association and imposed the same number of penalties to a total amount of 1,021,532.73 quetzales (approximately US$132,800). The Government adds that, under the legislation that is in force, those penalties may be subject to administrative appeals and action. The Committee also notes the Government’s indication that, at the request of worker representatives, the General Labour Inspectorate has established 80 dialogue roundtables to resolve collective disputes, with solutions being found that are satisfactory to the workers, such as the reinstatement of dismissed workers and the payment of wage arrears in 19 cases. The Committee takes due note of this information. Also observing the persistence of many allegations by trade unions of anti-union discrimination, the Committee requests the Government to continue strengthening measures so that violations of trade union and collective bargaining rights are addressed as a priority by the labour inspection services. The Committee requests the Government to continue providing information on the number and type of penalties imposed by the General Labour Inspectorate in trade union matters, with an indication of the stage of their implementation and the number of administrative or judicial appeals made against them.

Effective judicial proceedings. In its previous comments, the Committee urged the Government to take action as soon as possible to overcome the obstacles to effective compliance with reinstatement orders handed down by the courts and to adopt new procedural rules to ensure that all cases of anti-union discrimination are examined by the courts in summary proceedings. The Committee notes the Government’s indication that: (i) in 2022, a coordinating group was established between the Office of the Public Prosecutor, the judicial authorities and the Ministry of Labour and Social Welfare to address bilaterally cases raised by workers’ representatives, and is still waiting for the workers to indicate a date for meetings to begin; (ii) on 10 February 2023, the Pluripersonal Court of Penal Resolution was inaugurated to hear crimes relating to the failure to give effect to labour and social welfare rulings, and is based in the City of Guatemala; (iii) its competence includes cases of failure to comply with reinstatement orders issued by courts; (iv) up to 27 July 2023, a total of 137 orders had been referred to the Court, with 38.34 per cent of the cases being under investigation and hearing dates have already been set for the third quarter of 2023 for another 38.4 per cent of the cases and/or procedural solutions have been applied. The Committee notes the Government’s further indication that it does not have available specific data on reinstatement procedures in cases of anti-union dismissals, as not all the economic and social disputes referred to the courts by the executive committee of unions concern anti-union dismissals. Despite that, the Government indicates that, between 2020 and 2022, the courts examined 21 cases relating to the reinstatement of trade union leaders or the members of unions that were being established, with the following outcomes: (i) the employer accepted the reinstatement in one case; (ii) the employer has not accepted it in four cases; (iii) it was not possible to examine the issue in 12 cases; and (iv) the court ruling was not implemented in four cases. The Government adds that, as agreed by the joint mission by the ILO, IOE and ITUC and the CNTRLLS, the ILO is currently carrying out an analysis of the challenges faced in achieving compliance with court reinstatement orders in cases of anti-union dismissals. The Committee also notes a series of further initiatives reported by the Government with the intention of facilitating judicial processes in labour matters, including in particular: (i) the establishment of a system for the electronic notification of the parties to cases; (ii) the specialization of various labour and social insurance tribunals, with their separation from the family branch; and (iii) the creation by the Supreme Court of the sixth chamber for labour and social insurance, which will allow the more rapid treatment of cases in which appeals are lodged.

The Committee takes due note of this information and particularly welcomes the establishment of the Pluripersonal Court for crimes of non-compliance in labour matters. However, the Committee observes: (i) the persistence of many allegations of the lack of judicial protection in relation to anti-union discrimination; (ii) the observation by the joint mission by the ILO, IOE and ITUC of the existence of a combination of legal, institutional and practical factors preventing the effective operation of the justice system in relation to anti-union discrimination in general and compliance with reinstatement orders in particular; and (iii) that the data provided by the Government on a limited number of cases confirm the difficulties involved in enforcing court reinstatement orders. In light of the above, the Committee requests the Government to continue and intensify the current efforts to ensure compliance with reinstatement orders, taking due account of the guidance provided in the analysis that is currently being prepared by the Office, and to provide statistics on the specific results achieved by the new judicial body in terms of compliance with and the execution of reinstatement orders. Furthermore, observing the lack of legislative progress in relation to judicial labour procedures, the Committee once again urges the Government to, in consultation with the social partners, take the necessary measures for the adoption of new 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.

Article 4. Promotion of collective bargaining. In its previous observations, the Committee noted the existence of various legislative obstacles (particularly those deriving from section 215(c) of the Labour Code, which requires at least 50 per cent membership in a particular sector to be able to establish an industry union, which has the effect of preventing any collective bargaining at the sectoral level) and practical obstacles to the exercise of collective bargaining, and noted the very low number of collective agreements concluded and approved in the country. The Committee notes that the Government refers firstly to a series of activities to promote collective bargaining, including (i) the campaign on freedom of association and the initiatives to facilitate the registration of trade unions described in the Committee’s comments on the application of Convention No. 87; (ii) the various initiatives of the Ministry of Labour and Social Welfare in general, and the General Labour Inspectorate in particular, to resolve collective disputes through dialogue (and particularly the dialogue round-tables referred to above in relation to Article 1 of the Convention); and (iii) the capacity-building for labour judges, especially on the subject of collective bargaining. The Government also indicates that it is awaiting the technical assistance of the Office to facilitate tripartite dialogue on the legislative reform relating to industry unions and sectoral bargaining. The Committee notes the information provided by the Ministry of Labour and Social Welfare to the Governing Body indicating that, between 2015 and July 2023, the Ministry approved a total of 140 collective agreements (in the private and public sectors). The Committee also notes that trade union and international organizations continue to allege the persistence of major obstacles to the exercise of collective bargaining in both the private and public sectors, especially in relation to the process of approval by the Ministry of Labour and Social Welfare. The Committee regrets to note, in light of the above, that legislative obstacles persist which prevent collective bargaining at the sectoral level and that it has not been provided with specific information on the number of enterprise collective agreements concluded and approved over the past two years. The Committee therefore once again urges the Government to, in consultation with the social partners, take the necessary measures to: (i) reform the legislation so that collective bargaining is possible at all levels; and (ii) actively promote the use of free and voluntary collective bargaining and ensure that the approval procedure does not constitute an obstacle to it. The Committee requests the Government to keep it informed in this regard and to provide full information on the number of collective agreements adopted and in force in the country, the sectors concerned and the workers covered.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In previous comments, the Committee requested the Government to provide information on the timeframe for the approval of public sector collective agreements on conditions of work and on the reasons for decisions not to approve such agreements. The Committee also requested the Government to provide information on developments in relation to cases in which the validity of certain clauses of public sector collective agreements has been subject to legal challenges. The Committee notes the Government’s indications that: (i) the period for the approval of collective agreements, whether in the private or public sectors, is 25 working days, although the application of that period is subject to the comments (previos) made by the labour administration to guarantee the legality of the agreements and the response time of the parties to those comments; (ii) the reasons for decisions not to approve agreements are due to the absence of responses by the parties to the comments made by the labour administration; (iii) between 2012 and July 2023, a total of 119 collective agreements were approved in the public sector, of which 23 were approved with reservations, while 25 were not approved; (iv) within the context of the priority actions identified by the joint mission of the ILO, IOE and ITUC, the implementation of a tripartite examination, with ILO assistance, of the practice relating to the approval of collective agreements in the public sector is still pending; and (v) the Government needs to obtain more detailed information on specific cases that have given rise to legal action by the authorities against collective agreements in the public sector.

The Committee also notes the observations by national and international trade union organizations, which continue to denounce, based on a series of specific allegations, that the procedure for the approval of public sector collective agreements by the Ministry of Labour and Social Welfare gives rise to practices that are contrary to free and voluntary collective bargaining and that the Office of the National Attorney-General is continuing to challenge in the courts the validity of certain collective agreements that have already been concluded.

While noting the information provided by the Government, both in general and in relation to specific cases raised by the unions, the Committee notes the existence of profound discrepancies between the Government and the unions concerning the practices of the Ministry of Labour and Social Welfare in relation to the approval of collective agreements and the alleged challenges by the Office of the Attorney General against collective agreements concluded in the public sector. The Committee recalls that, in previous comments, it encouraged the Government to make efforts to ensure that there is a clear and balanced regulatory framework for collective bargaining in the public sector, but that it has not been provided with any further information on this subject. In view of the above, and recalling that Guatemala has also ratified the Collective Bargaining Convention, 1981 (No. 154), the Committee requests the Government to carry out broad consultations with the unions concerned with a view to: (i) evaluating and guaranteeing, in the specific context of the public administration, the conformity of the approval procedure for collective agreements with the principle of free and voluntary collective bargaining; and (ii) identifying the reforms necessary to ensure that collective bargaining in the public sector is based on a clear and balanced regulatory framework. The Committee recalls that the Government can continue to rely on ILO technical assistance in this regard.

Application of the Convention in practice. The maquila sector. In its previous comments, the Committee regretted the persistence of a very low level of the exercise of collective rights in the maquila (export processing) sector and the absence of initiatives focusing specifically on their promotion. The Committee notes the Government’s indications that: (i) four of the cases examined by the recently created Pluripersonal Court of Penal Resolution to hear cases of failure to comply with labour and social welfare orders are related to the maquila sector; (ii), in 2023, the General Labour Inspectorate carried out inspections in 177 enterprises in the maquila sector, without identifying violations of freedom of association and collective bargaining; and (iii) training activities are being carried out for women working in the maquila sector, such as the diploma in auxiliary nursing specializing in reproductive rights and the promotion of human rights, which includes references to ratified ILO Conventions. While noting this information, the Committee observes that: (i) it has not received any further information on the exercise of collective rights in the maquila sector (such as bargaining, the conclusion of collective agreements or the registration of unions); (ii) it has not been provided with information on specific action to promote trade union rights and collective bargaining focusing on the maquila sector; and (iii) the complaint filed in June 2023 under article 26 of the ILO Constitution alleges that anti-union harassment is common in the sector. In light of the above, the Committee urges the Government, in collaboration with the social partners and in accordance with the campaign described in the Committee’s comments on the application of Convention No. 87, to take specific measures to promote freedom of association and collective bargaining in the maquila sector and to provide information on this subject. The Committee also requests the Government to provide updated information on the exercise of collective rights in the sector, including the number of collective agreements in force and the number of workers covered by them, and the number of active unions.

Application of the Convention in municipal authorities. In its previous comments, in light of the existence of allegations of the violation of the Convention in various municipal authorities in the country, the Committee urged the Government to take all the necessary measures, including legislative measures where necessary, to ensure the application of the Convention at the municipal level. The Committee notes the Government’s indications that: (i) three of the cases examined by the recently created Pluripersonal Court of Penal Resolution are related to municipal authorities; (ii) as indicated previously, a coordination group has been created between the Office of the Public Prosecutor, the judicial authorities and the Ministry of Labour and Social Welfare which is at the disposal of workers’ representatives to examine cases that they consider to have priority; (iii) the General Labour Inspectorate is addressing as a priority 54 complaints concerning freedom of association and collective bargaining made against municipal authorities between 2022 and April 2023; and (iv) 12 of the 19 dialogue round-tables established by the General Labour Inspectorate in which satisfactory results have been obtained are related to municipal authorities. The Committee welcomes the various institutional efforts referred to by the Government to resolve disputes that have arisen in a series of municipal authorities and takes due note of the detailed information provided on the specific cases raised by the unions. However, the Committee observes that, despite the above: (i) there are still a high number of allegations of anti-union discrimination and obstacles to collective bargaining in the municipal sector which may reflect the existence of structural difficulties in industrial relations in the sector, which is an important source of formal employment; and (ii) the fact that new mayors are taking office in January 2024 following the elections held in 340 municipalities in the country in 2023 is likely to give rise to new disputes. In view of the above, the Committee urges the Government to: (i) reinforce its current efforts to resolve existing disputes in municipal authorities in accordance with the Convention; and (ii) engage in broad dialogue with the social partners and the respective authorities with a view to finding lasting solutions, including of a legislative nature, to the issues arising in relation to the exercise of the collective rights of municipal workers. The Committee requests the Government to provide information on this subject.

Tripartite settlement of disputes in relation to freedom of association and collective bargaining. In its previous comments, the Committee regretted to note that the Subcommittee on Mediation and Dispute Resolution of the CNTRLLS had not yet started to discharge its functions in practice. The Committee notes the Government’s indications that: (i) the Subcommittee does not yet have a mediator, for which reason it has not been able to examine the 14 cases that it has accepted; (ii) the joint mission by the ILO, IOE and ITUC identified the determination of the profile of the mediator as a priority action; and (iii) the Subcommittee has met on two occasions in 2023 and the determination of the profile of the mediator is continuing. In light of the numerous disputes referred to by the Government and the unions, the Committee emphasizes the importance of developing dispute resolution machinery based on social dialogue. The Committee therefore encourages the tripartite constituents in the country to renew their efforts to provide the Subcommittee on Mediation and Dispute Resolution with one or more mediators so that it can begin to discharge its functions. The Committee requests the Government to provide information in this regard.

Noting the persistence of significant shortcomings in compliance with the Convention, the Committee urges the Government, with ILO technical assistance, to intensify its efforts to overcome the legislative and practical difficulties examined in the present comment.

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

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.]

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee updated the 2019 examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 16 September 2020, as well as the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 16 October 2020.

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 different observations made by the ITUC and the national trade union federations, 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.

COVID-19 pandemic and application of the Convention. The Committee notes that the national trade union federations allege that, as a result of the COVID-19 pandemic, both the Ministry of Labour premises and the national labour courts were shut down, leaving workers completely unprotected to file complaints for violations of fundamental labour rights. While acknowledging the great challenges posed by the pandemic, the Committee requests the Government to provide its comments on the matter.

In its 2019 comments, the Committee had 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 this Convention.

The Committee takes note of the discussions that took place during the 340th Session of the Governing Council (October–November 2020) concerning the additional measures taken to achieve a sustainable and comprehensive implementation of the afore-mentioned road map.

The Committee notes that the Governing Body (i) 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” (hereinafter the technical cooperation program) and requested that its implementation be funded, and (ii) requested the Office to present an annual report on the implementation of the project at its October–November meetings, during the projected three-year project duration.

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 that the Government, in its 2019 report and its 2020 supplementary information, indicates that: (i) between January 2018 and April 2019, the total number of penalties notified by the labour inspectorate was 1,233, and between January 2018 and 10 August 2020, 783 fines were paid by the infringing companies; (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 for the entire year 2019, a total of 539 complaints related to acts that could be classified as anti-union discrimination were received at the national level, and they are being addressed; and (v) the Government has initiated the procedures to adopt the Ministerial Agreement that will render operational the IGT Tripartite Advisory Council. The latter being the 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 hopes that the IGT Tripartite Advisory Council will start its activities without further delay. 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 program developed by the latter.

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. The Committee notes in this regard that the Government provides updated data on the procedural status of relocation proceedings, according to which, between 1 January 2019 and 7 September 2020: (i) the country's labour courts received 6,257 reinstatement complaints (6,123 for the public sector and 134 for the private sector); (ii) of the 6,257 requests for reinstatement, 1,794 have already resulted in a judicial decision, 148 were dismissed or resulted in a withdrawal and 4,315 are ongoing; (iii) of 1,501 reinstatement rulings ordered during that period, 385 were executed, 918 resulted in an objection by the employer and 198 were not possible for practical reasons (incorrect address and so on); (iv) during the same period, 1,390 appeals were lodged in respect of the reinstatements (1,323 in relation to the public sector and 67 to the private sector); (v) the Public Ministry issued 344 certified reports in respect of the reinstatement proceedings (343 for the public sector and one for the private sector); and (vi) 55 per cent of the amparo proceedings examined by the Supreme Court of Justice relate to labour issues. The Committee further notes the Government’s indication that Bill No. 5809 submitted by the Supreme Court of Justice, which provides for the approval of the Labour and Social Security Procedural Code, is about to be presented in plenary session to the Congress of the Republic. This code will allow for agile and effective judicial proceedings in labour-related matters. The Committee finally notes that the Government indicates that the Subcommittee, in compliance with the road map of the National Tripartite Committee, is examining the failure of two municipalities and two other public institutions to comply with reinstatement orders as a matter of priority.

In the light of the above, the Committee observes 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) the ITUC and the national trade union federations continue to denounce the lack of progress on judicial protection against anti-union discrimination acts; (iii) CACIF emphasizes that, according to the data supplied by the judiciary, the public sector is where most reinstatements are requested; and (iv) even though the draft reform of the judicial procedural rules on labour matters prepared by the Supreme Court, is intended to expedite labour judicial proceedings in general, it does not appear from the information provided, that the project contains specific provisions aimed at ensuring the summary and effective resolution of cases of anti-union discrimination.

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 two recent cases, 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 392nd Report, October 2020, Case No. 2869, paragraph 633 and 386th Report, June 2018, Case No. 3188, paragraph 340).

In view of the above, the Committee urges once again 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); (iii) 12 collective agreements between 1 January and 18 September 2019 (eight in the public sector and four in the private sector); and (iv) six collective agreements between August 2019 and 31 August 2020. The Committee takes note in this regard of the allegations of the ITUC and the national trade union federations, based on the statistics provided by the Government, that there is a serious decline in collective bargaining in the country.

The Committee notes with concern that the already extremely low number of collective agreements agreed and approved continues to decline, 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 2018 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 2019 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. While noting the absence of concrete progress on the development of legislative instruments based on the principles agreed upon in 2018, the Committee notes that the Government indicates in its supplementary information that: (i) the technical cooperation project developed by the Office contains activities relating to the promotion of collective bargaining; and (ii) a consultant hired by the ILO is providing support to the National Tripartite Committee by carrying out a study to update Guatemalan labour legislation in the light of the reforms requested by this Committee, assistance which would lead to meetings with the tripartite constituents in November 2020.

The Committee requests the Government to make use, with the support of the technical cooperation program developed by the Office, 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 expresses 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 requests the Government to provide information in that regard.

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 2019 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 Committee notes that, in the additional information provided in 2020, the Government informs that, in addition to the six collective agreements approved between August 2019 to August 2020, 15 additional applications for approval were requested in the same period, the labour administration is examining 14, and a file has been returned to the applicants for completion. In this regard, the Committee also notes the recurrent allegations by the national trade union federations according to which the labour administration would have used the approval process to hinder collective bargaining in the public sector. Stressing the importance of strengthening the regulatory framework applicable to the approval of collective bargaining agreements in the public sector, the Committee notes with concern the very long periods to which public sector collective bargaining agreements are still subject before approval. The Committee requests the Government to, in consultation with the representative trade union organizations of the sector, identify appropriate measures to remedy this situation and to report on any progress 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 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 that in its complementary information, the Government states that from 2013 to 16 March 2020, five registered unions were counted in this sector. In the absence of additional information, the Committee is bound to repeat its previous requests and hopes that the Government will provide information on specific initiatives to promote collective bargaining in the maquila sector in its next report.

Application of the Convention in municipal authorities. In its comment published in 2018, 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 had 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 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 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 the Subcommittee began to function effectively and that a direct agreement was reached between the Ministry of Environment and Natural Resources and the unions of the mentioned Ministry. The Committee also notes that the national trade union federations, for their part, claim that the Subcommittee does not function because of a lack of tripartite spirit and the unwillingness of the employers who were invited to the Subcommittee. The federations allege that the agreement referred to by the Government was reached outside the Subcommittee and that it was breached by the employer, leading to the outbreak of the collective conflict.

Stressing the important role that the Dispute Settlement Subcommittee can play in a context of numerous allegations of anti-union discrimination and noting that the technical cooperation programme developed by the Office provides for its strengthening, the Committee hopes that the Government will be able to report on the progress made in its activities.

Noting the lack of significant progress the Committee urges the Government to take all necessary steps, with the participation of the National Tripartite Committee and with the support of the technical assistance program developed by the Office, to remedy as soon as possible the serious violations of the Convention that the Committee has been raising for many years.

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

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.

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

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.]

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

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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee recalls that for many years it has been referring to the following problems of serious restrictions on the exercise of trade union rights in practice:

• – the excessive delays in procedures for the reinstatement of trade unionists in accordance with rulings by judicial bodies and the utilization of amparo proceedings (for the protection of constitutional rights); this is a general problem and the Committee has received information concerning an average of three years between the preliminary hearing and the trial, which may last for between six and seven years;
• – the failure to comply with orders for the reinstatement of dismissed trade unionists;
• – the slowness and ineffectiveness of procedures to impose penalties for breaches of labour legislation;
• – the need to promote collective bargaining, especially in the maquila sector.

The Committee previously also requested information on the Bill on Civil Service Reform (this question is now dealt with in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).

With reference to these matters, in its previous observation, the Committee noted that, under the auspices of the high-level mission in 2008, the Tripartite Commission concluded an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, with the agreement calling for an examination to be carried out of the dysfunctions of the current labour relations system (excessive delays and procedural abuses, lack of effective application of the law and of penalties, etc.), and in particular of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as set forth in Conventions Nos 87 and 98 in the light of the technical considerations and substantive and procedural comments of the Committee of Experts.

The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Union Unity of Guatemala (CUSG) in a communication dated 29 August 2011 (in relation to which, the Government’s reply refers to imprecise and false indications) and on the trade union membership of certain alleged victims, as well as the comments of the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in a communication dated 30 August 2011. The Committee further notes the communication of the International Trade Union Confederation (ITUC), dated 4 August 2011, which emphasizes that violations of the Convention occur in both the public and private sectors and include pressure to renounce trade union membership and dismissals as a result of the establishment of unions.

The Committee notes that the communications of the ITUC and the MSICG confirm that the problems referred to above continue at the present time. The Committee observes that the communications of the trade union confederations referred to above emphasize the lack of political will by the Government to resolve the outstanding problems despite the many ILO missions and the fact that year after year the Government is called upon to appear before the Conference Committee on the Application of Standards, where backward steps are noted, as they are in many cases by the Committee on Freedom of Association. The trade union confederations emphasize that the supervisory bodies have indicated that the situation with regard to trade union rights continues to be serious and a cause for concern, and that judicial delays have increased despite the rise in the number of tribunals. They add that non-compliance with court reinstatement orders continues and that the courts do not discharge their functions adequately in relation to the exercise of the right to collective bargaining when trade unions bring legal action. The national trade union confederations provide details of hundreds of cases of anti-union dismissals, as well as many cases of court reinstatement orders which are not given effect. The ITUC links these problems with the climate of violence suffered by trade union leaders.

The Committee notes the Government’s indication that the matters raised by the Committee have been discussed in the National Tripartite Commission for years and that tripartite consensus has been reached on some of them, including with regard to certain reforms. Moreover, according to the Government’s indications, the Tripartite Commission has reactivated subcommissions to follow up the various pending issues. The Committee notes the Government’s indication that the subject of legal reforms is currently under analysis with a view to reactivating the relevant proposals, and for this purpose an integrated commission is operating under the terms of Government Decisions Nos 158-2011 and 246 2011.

The Committee notes the Government’s indication in its report that the labour and social welfare tribunals and chambers discharge the functions assigned to them by Decree No. 1441 issuing the Labour Code (statistical data are attached). With regard to the Committee’s comments concerning the “abuse of amparo and appeal procedures”, the Government indicates that the use made of both procedures is at the exclusive discretion of the parties to procedures relating to labour and social welfare disputes, and that the judiciary cannot deny the constitutional procedure of amparo as, in accordance with the corresponding constitutional provisions, “no subjects may not be covered by amparo”. With regard to the failure to comply with orders to reinstate dismissed trade unionists, the Government indicates that in such cases those concerned have to inform and take action in the labour courts to claim the appropriate legal remedies. With reference to the slowness and ineffectiveness of procedures relating to sanctions for violations of labour legislation, the Government indicates that the General Labour Inspectorate, through the Legal Advisory Section, during the course of 2010 and within the time limits set out by law, filed 1,848 charges with labour and social welfare tribunals against individuals or associations as a result of labour inspections, in which there were found to be certain violations of the legal provisions in force in the country, both in terms of domestic law and those relating to international Conventions, with the total amount of fines imposed for such violations amounting to 2,378,761.63 quetzales. The Government adds that the practice of referring cases of non-compliance to the labour and social welfare tribunals is linked to the fact that in 2004 the Constitutional Court found it unconstitutional for the General Labour Inspectorate to impose administrative financial sanctions on all employers who were in breach of legal provisions. This lack of legal means of enforcement removed from the General Labour Inspectorate its power to enforce compliance with the law, for which reason it is now necessary to pursue violations through judicial procedures. The Committee indicates that in 2011 there were 57 administrative complaints of violations of freedom of association and collective bargaining (there were 55 in 2010 and 145 in 2008). The Committee regrets that the Government has not provided statistical data on the duration of legal procedures and the sanctions applied for anti-union acts. It requests the Government to provide specific information on these matters. With regard to the need to promote collective bargaining, especially in the maquila sector, the Government indicates that there has been a rise, based on the guarantees of freedom of association set out in the Constitution, in the application of ILO Conventions on freedom of association and collective bargaining and that there are currently 11 unions in the maquila sector.

The Committee expresses concern at the various cases that are before the Committee on Freedom of Association in relation to these matters and also at the very high number of allegations of anti-union dismissals (hundreds in many public institutions and certain private enterprises, according to the trade union confederations) and acts contrary to the right to collective bargaining referred to by the ITUC and MSICG.

Recalling once again that all of the problems raised are very serious, the successive ILO high-level missions, including the most recent in May 2011, the Committee requests the Government, in consultation with the most representative organizations of workers and employers, to undertake the necessary procedural and substantive reforms to: (1) resolve cases of anti-union discrimination and the slowness of the labour courts (including more effective and rapid proceedings and more dissuasive penalties); (2) promote collective bargaining in view of the worrying figures for the collective accords that are in force (according to the Government, 58 collective accords were concluded between 2008 and 2009, as in Guatemala collective bargaining tends to take place at the level of the enterprise or public institution); and (3) adopt additional measures to improve labour inspection (since, according to the Government, it has not been possible to appoint all of the envisaged new inspectors) and to enable the courts to enforce rulings without delay. The Committee requests the Government to provide information in this regard and hopes to be able to note significant progress in the near future.

The Committee notes the Government’s indication that 64 new unions and 33 new collective labour accords have recently been registered. Taking into account the lower number of collective accords in the private sector, the Committee requests the Government to promote collective bargaining and to continue to provide information on the number of unions and collective accords, the number of members and of complaints submitted in 2010 and 2011 to the labour inspection services concerning violations of trade union rights. The Committee also requests the Government to provide its observation on the allegations by the MSICG that 444 unions do not currently have a collective accord.

In view of the delicate situation relating to the application of the Convention, the Committee expresses the firm hope that the Government and the authorities in general will include compliance with the Convention among their highest priorities.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in 2009 and the ten cases that are before the Committee of Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2700, 2708 and 2709). In its previous observation, the Committee noted the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission with a view to improving the application of the Convention. The Committee notes the reports of the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009, as well as a final mission to provide assistance to the Tripartite Committee for the Formulation of the Road Map on the Measures Requested by the Committee of the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee also notes the detailed comments on the application of the Convention made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 and by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in defence of the rights of workers in a communication dated 28 August 2009 which relate to issues already raised by the Committee, as well as further anti-union dismissals, the formulation of “blacklists”, acts of interference, violations of the right to collective bargaining and other alleged violations of the Convention. The Committee hopes that, in the context of the tripartite agreement concluded during the high-level mission, all of the issues raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

The Committee recalls that for many years it has been referring to the following problems relating to restrictions on the exercise of trade union rights in practice:

–      the excessive delays in procedures for the reinstatement of trade unions in accordance with rulings by judicial bodies and the utilization of amparo procedures (for the protection of constitutional rights); this is a general problem and the Committee has received information concerning an average of three years between the preliminary hearing and the trial, which may last for between six and seven years;

–      the failure to comply with orders for the reinstatement of dismissed trade unionists;

–      the slowness and ineffectiveness of procedures to impose penalties for breaches of labour legislation;

–      the need to promote collective bargaining, especially in export processing zones;

–      the need for the draft Code of Labour Procedures to be subject to in-depth consultation with the most representative organizations of workers and employers; and

–      the Bill on Civil Service Reform (the Committee noted the Government’s indication that the Bill had been delayed, but that in July 2008 an intersectoral dialogue forum was established with a view to obtaining a bill that is adapted to the specific needs of the sectors concerned).

The Committee notes that the communications of the ITUC and the MSICG confirm the persistence of these problems. The Committee notes the Government’s indication that the subjects raised by the Committee have been discussed by the National Tripartite Commission for several years and that tripartite consensus has been achieved on some of them.

The Committee notes the Government’s indication in its report: (1) of its will to undertake and reinforce affirmative action to seek effective machinery for the protection of the interests and rights of active subjects of industrial relations in Guatemala; (2) that the Tripartite Commission has undertaken an analysis of the cases brought against the State of Guatemala in the Committee on Freedom of Association and has agreed to seek technical assistance with a view to reducing the list of cases; and (3) that the Tripartite Commission has examined the draft texts of legal reforms based on the recommendations of the ILO supervisory bodies, denunciations of cases, etc.

Furthermore, in relation to these matters, the Committee noted previously that, under the auspices of the high-level mission in 2008, the Tripartite Commission concluded an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, with the agreement calling for an examination to be carried out of the dysfunctions of the current labour relations system (excessive delays and procedural abuses, lack of effective application of the law and of penalties, etc.), and in particular of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as set forth in Conventions Nos 87 and 98, in the light of the technical considerations and substantive and procedural comments of the Committee of Experts. In this respect, the Government indicates that the Ministry of Labour and Social Insurance appointed a commission of lawyers under the Ministry of Labour with a view to formulating proposals for legislative reforms to the Labour Code, the Penal Code and the Act regulating the right to strike of State employees. The results of the work of this commission of lawyers have been forwarded to the members of the Tripartite Commission on International Labour Affairs for analysis and discussion.

The Committee has received the report of the first technical assistance mission (November 2008) following up the high-level mission (April 2008) and of a second technical assistance mission (January 2009), to which are attached the proposed legislative reforms that are before the National Tripartite Commission. The Committee firmly hopes that, with the technical assistance that it is receiving, the Government will be in a position to provide information in its next report on progress in relation to the various points referred to above.

Finally, the Committee notes the report of the high-level mission which visited Guatemala in February 2009, following the discussion in the Conference Committee on the Application of Standards in June 2008 of the application of Convention No. 87. The Committee welcomes the fact that the Government extended the terms of reference of the mission to problems relating to the application of Convention No. 98.

The Committee notes that in its report the high-level mission of 2009 reached the following conclusions:

Effectiveness of the judicial system

The issue of the effectiveness and finality of judicial procedures and compliance with court rulings constitutes the central issue of the frustration related to the effective protection of freedom of association, which affects all parties. A broad range of aspects needs to be addressed appropriately and adequately without delay. This includes the abuse of amparo proceedings and appeals (the revision of amparo proceedings is currently under examination), failure to comply with court rulings without fines or judicial penalties being applied and the incapacity of the courts to enforce the implementation of court rulings.

Effective implementation of freedom of association

Under these circumstances, the mission is bound to note the very low level of membership and of collective agreements and it notes the concerns expressed by workers’ organizations concerning the existence of difficulties in practice for the establishment of trade union organizations at the enterprise level and greater obstacles in export processing zones. All the social partners raised the question of the need to improve labour inspection, including through an undertaking to increase its budget significantly so as to allow the recruitment of new labour inspectors and the payment of appropriate wages, as well as the need for capacity-building and other training activities.

Futhermore, there is a general consensus on the need to provide information to all the social partners in relation to collective bargaining in which the participants have an equivalent level of decision-making power with a view to promoting the effective recognition of this right.

The Committee expresses its concern at the very high number of allegations of anti-union dismissals and acts in violation of the right to collective bargaining made by the ITUC and the MSICG. The Committee appreciates the information provided by the Government concerning the establishment of eight further labour courts in the city of Guatemala, thereby increasing their number by 100 per cent.

Recalling that all of the problems raised are very serious, the Committee requests the Government, in consultation with the most representative organizations of workers and employers: to undertake the necessary procedural and substantive reforms to resolve cases of anti-union discrimination and the slowness of the labour courts (including more effective and rapid proceedings and more dissuasive penalties); to promote collective bargaining in view of the worrying figures for the collective accords that are in force (according to the Government, 58 collective accords were concluded between 2008 and 2009, as in Guatemala collective bargaining takes place at the level of the enterprise or government institution); and the adoption of measures to improve labour inspection and to enable the courts to enforce rulings without delay. The Committee requests the Government to provide information in this respect and hopes to be able to able to note significant progress in the near future.

The Committee notes the Government’s indication that 64 new unions and 33 new collective labour accords have been registered. The Committee requests the Government to continue providing information on the number of unions and of collective accords, the number of members and the complaints made in 2008 and 2009 to the labour inspection services concerning violations of trade union rights.

Finally, the Committee notes the Road Map formulated by the Government to improve the application of Conventions Nos 87 and 98, the content of which is covered by the observation on Convention No. 87, and which includes objectives for legislative reforms and improvements in judicial procedures.

In view of the delicate situation relating to the application of the Convention, the Committee expresses the firm hope that the Government and the authorities in general will include compliance with the Convention among their highest priorities.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission with a view to improving the application of the Convention.

The Committee also notes the detailed comments on the application of the Convention made by the Indigenous and Rural Workers Trade Union Movement of Guatemala in a communication dated 31 August 2008, and by the International Trade Union Confederation (ITUC) referring to matters already raised by the Committee, as well as to acts of anti-union discrimination and interference by employers, obstacles to collective bargaining processes and the violation of collective agreements. In this respect, the Committee hopes that, in the context of the tripartite agreement concluded during the high-level mission, all of the issues raised will be examined and addressed in a tripartite manner by the Government and the social partners with the technical assistance of the ILO in the context of the work of the Tripartite Commission on International Labour Affairs, and the Subcommission for Legal Reform and Rapid Intervention Machinery.

The Committee recalls that for various years it has been referring to the following problems relating to restrictions on the exercise of trade union rights in practice;

–      failure to comply with orders for the reinstatement of dismissed trade unionists;

–      slowness and ineffectiveness of procedures to impose penalties for breaches of labour legislation;

–      need to promote collective bargaining, especially in export processing zones;

–      need for the Code of Labour Procedures to be subject to in-depth consultation with the most representative organizations of workers and employers; and

–      the Bill on civil service reform. The Committee notes the Government’s indication in its report under Convention No. 87 that the Bill has been delayed, but that in July 2008 an intersectoral dialogue forum was established with a view to obtaining a bill that is adapted to the specific needs of the sectors concerned.

The Committee notes the Government’s indication that the matters raised by the Committee have been discussed for several years by the National Tripartite Commission and that tripartite consensus has been achieved on certain issues.

Furthermore, in relation to these matters, the Committee notes that, under the auspices of the high-level mission, the Tripartite Commission concluded an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, with the agreement calling for an examination to be carried out of the dysfunctions of the current labour relations system (excessive delays and procedural abuses, lack of effective application of the law and of penalties, etc.), and in particular of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members set forth in Conventions Nos 87 and 98 in the light of the technical considerations and substantive and procedural comments of the Committee of Experts. The Committee observes that the high-level mission undertook to organize appropriate technical assistance on these matters and notes with interest that this assistance is being provided.

The Committee has received the report of the first technical assistance mission (November 2008) following the high-level mission (April 2008). The Committee firmly hopes that the Government, with the technical assistance it is receiving, will be in a position to provide information in its next report on the progress made in relation to the various issues raised above.

Finally, the Committee observes that, at the session of the International Labour Conference in 2008, when examining the application of Convention No. 87 by Guatemala, the Committee on the Application of Standards invited the Government to accept a mission made up of the Employer and Worker spokespersons to assist the Government in finding durable solutions to all of the above matters. The Committee of Experts appreciates the Government’s acceptance of the above invitation and its indication that each and every good faith mission that wished to help in overcoming the complex situations relating to freedom of association was welcome.

The Committee will examine these matters in its next examination of the application of the Convention in the light of the report of the above mission.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report, the discussion in the Committee on the Application of Standards in June 2007 and the cases under examination by the Committee on Freedom of Association.

The Committee also notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) on 12 July 2007, which mainly refer to matters that are already under examination by the Committee, as well as those covered in the cases under examination by the Committee on Freedom of Association.

The Committee also notes the conclusions of the technical assistance mission which visited the country from 26 to 28 February 2007 and the Government’s acceptance of a new mission at the end of April 2008.

The Committee recalls that for various years it has been raising the following problems relating to restrictions on the exercise of trade union rights in practice.

Failure to comply with orders to reinstate dismissed trade unionists. The Committee notes the Government’s indication that, together with magistrates from the Supreme Court of Justice, the Ministry of Labour and Social Insurance has initiated an investigation into all the complaints of failure to comply with orders to reinstate dismissed trade unionists, with particular reference to the cases that are before the Committee on Freedom of Association. In this respect, the Government indicates that in cases in which reinstatement has not been carried out, this is recorded and the employers are prosecuted for failure to comply with court orders. In the case of mayors or ministers who have not complied with court orders, it is necessary to wait until the preliminary procedures are initiated before proceeding with the prosecution. According to the Government, certain cases are before the courts on appeals or recourse for the protection of constitutional rights (amparo). The Committee requests the Government to indicate whether, as a result of these proceedings and court cases, compliance is achieved with reinstatement orders.

Slowness of the procedure to impose penalties for breaches of labour legislation. In this regard, the Committee notes the Government’s indication that meetings have been held with magistrates of the Supreme Court of Justice with a view to exchanging impressions and information, with a view to making tangible proposals to seek improvements in the application of labour law through the orders issued by labour courts. In this respect, the Government indicates that greater flexibility has been achieved in the penalties applied by the labour courts for labour-related offences and the respective fines have been imposed. Studies and analyses have been carried out according to the tripartite proposal for the recruitment of an official exclusively assigned to monitoring the implementation of sentences for labour and social security offences. The tripartite proposal to carry out training for labour judges with a view to unifying the criteria applied will be studied and analysed. It is also intended to carry out activities in the context of the project for the strengthening of labour courts in Central America and the Dominican Republic, which is currently being implemented by the ILO Subregional Office and is financed by the Government of the United States.

The Committee also notes that in its conclusions the technical assistance mission considered that court procedures are slow in view of the low number of courts and the possibility for those found guilty, following the ruling of the court of second instance, to challenge the ruling through a procedure for the protection of constitutional rights (amparo). This procedure impedes prompt action by the courts and means in practice that a new body becomes involved, thereby doubling the time required for the proceedings. It adds that the roots of the problem lie in the excessive reliance on the courts to assert collective labour rights. There is a tendency to defer to the courts when seeking collective solutions, and an absence of typical trade union action.

Need to promote trade union rights (and particularly collective bargaining), especially in export processing zones. The Committee notes the Government’s indication that two tripartite seminars were undertaken on freedom of association and collective bargaining in the export processing sector, in accordance with the recommendations of the Committee. The Government adds that due to the high level of demand and the need to promote trade unionism and collective bargaining in this sector, and with a view to continuing this work, technical and financial assistance has been requested with a view to holding a monthly tripartite seminar on freedom of association and collective bargaining in the export processing industry. The Government adds that, in the context of a draft national policy of free advice for workers wishing to organize, 15,000 information leaflets have been issued. Furthermore, there is a free legal advice service for workers wishing to organize, including the regular dissemination of labour and social security laws. Labour inspectors are continually holding training seminars. The Government adds that the dispute prevention body in the export processing zone has carried out two seminars covering the subjects of labour law and “complaint procedures”. Workshops are also being organized on the subject of freedom of association.

The Committee further notes that the technical assistance mission indicated that it received contradictory information on the situation with regard to collective bargaining in export processing zones, where there are only two collective agreements in force, although it is not known how many workers they cover. There are now no more than three trade unions existing in export processing zones. The Committee requests the Government to continue promoting trade union rights in export processing zones and to provide information on this subject, particularly taking into account the reference in their latest communication by the national trade union organizations to substantial problems relating to trade union rights.

Numerous anti-union dismissals and violations of collective agreements. In this connection, the Committee notes the Government’s indication that, as a result of an investigation carried out by the labour courts it was found that there are very few complaints relating to anti-union dismissals. The Committee nevertheless emphasizes that the trade union organizations of the country in their latest communication refer to many cases of anti-union dismissals and that there are complaints before the Committee on Freedom of Association on this subject. With regard to the violation of collective agreements, according to a joint investigation undertaken by the Ministry of Labour and Social Security and the labour courts, it was found that in the few complaints that are made the parties to the conflict use the Joint Board to reach a settlement directly through conciliation.

According to the conclusions of the technical assistance mission, the fall in trade union membership has very different causes, although emphasis should be placed on the excessive slowness of procedures in cases of anti-union discrimination, the abuse of the appeal procedure for constitutional rights (amparo) and the inefficiency of the system of penalizing violations of labour and trade union legislation. The mission also concluded that cases of failure to comply with collective agreements can be taken through the usual court procedures, but that in practice this process, in the same way as the penalization of violations of labour law, can also take years. The Committee notes that the problems referred to persist and requests the Government to provide information on the complaints made.

Inadequacy of guarantees in the procedure for the termination of public officials (section 79 of the Civil Service Act; section 80 of the Regulations issued under this Act; Decree No. 35-96 amending Decree No. 71-86 of the Congress of the Republic; and Government decision No. 564-98, of 26 August 1998). In this context, the Committee notes the Government’s indication that the relevant provisions are contained in the Political Constitution of the Republic, the Labour Code, the Civil Service Act and its Regulations, and the Act on unionization and regulation of the right to strike by state employees. To impose a penalty, which may range from a verbal warning to termination of employment, it is necessary to comply with the requirements set out in the law, without which the penalties may be void. This shows that there are adequate guarantees in the procedures for the termination of public officials from the view point of the right of defence and the remedies available to workers. The Committee notes this information and understands that this issue was raised years ago by trade union organizations which were calling for a system of termination of employment in the public sector similar to the one set out in the Labour Code.

Need for the Code of Labour Procedures to be subject to in-depth consultations with the most representative organizations of workers and employers. In this connection, the Committee notes the Government’s view that it is not necessary to amend the Code of Labour Procedures. The Government adds that the magistrates of the Supreme Court of Justice maintain constant and productive dialogue with all the labour court judges in the country and that the objective is to make labour procedures more efficient and entirely oral, so that they can be more expeditive. The Government adds that the Extraordinary Commission for reforms in the judicial sector of the Congress of the Republic prepared a draft text which approves amendments to the Act respecting the protection of constitutional rights (amparo) which has received a favourable opinion and that the text was discussed and approved in the plenary of the Congress of the Republic in two readings. This proposed reform was the subject of broad consultation with the magistrates of the Supreme Court, the National Commission to follow up and support the strengthening of justice, officials of the Office of the Public Prosecutor, the public criminal defence service, representatives of the college of advocates and sectors of civil society. The reform is intended to make the process of seeking constitutional protection (amparo) more flexible and convert it into a system that is only used in special circumstances, brief and effective in its function of protecting fundamental human rights. In this way, it is intended to minimize the problems that are currently occurring in which the process of the protection of constitutional rights has given rise to delays and increased the workload of the courts through abusive actions. The Committee requests the Government to provide information on developments in this draft reform.

Bill on civil service reform. On this subject, the Committee notes that the initiative to reform the Civil Service Act was the subject of broad consultations. The Bill has received one favourable opinion and another that is unfavourable in the Congress of the Republic. The Government indicates that it has requested technical assistance to assess and make the necessary recommendations and proposals on the compatibility of the initiative with the Convention. The Committee hopes that this technical assistance will be provided in the near future.

Other matters. The Committee previously requested the Government, in the context of the Tripartite Commission, for an evaluation to be made of the various specific issues on which the institutional system for the defence of trade union rights remains deficient. In this respect the Committee notes the Government’s indication that meetings were initiated recently in the Tripartite Subcommittee on Legal Reforms, which will examine this issue.

The Committee further notes that, in general, the mission considered that the legislation that is in force raises obstacles to the appropriate development of trade union activities. In its report, it indicates that in 2005 and 2006, a total of 13 and 17 agreements were concluded respectively. The mission considered that the roots of the problem in Guatemala in relation to freedom of association and collective bargaining are to be found in the existence of a legal labour system, in both substance and procedural terms, which prevents and hinders the appropriate development of trade union activity, and accordingly of collective bargaining, as indicated by the ILO supervisory bodies in relation to Conventions Nos 87 and 98. Without their reform, it is very difficult to propose an appropriate solution and, moreover, the social partners and the Government display an approach that is entwined with attitudes arising out of this legal system. The Committee notes that this system gives priority to labour stability in collective disputes, which can last for years when they go to the courts. In a certain way, collective bargaining has been exchanged for labour stability, which does not ensure the effective application of Article 4 of the Convention.

The mission also considered that the Ministry of Labour is very weak for various reasons (budget, staffing, facilities, etc.), and even more so since a ruling by the Constitutional Court that it cannot judge and penalize violations of labour rules. This decision relieved the labour administration of the little enforcement capacity that it had. In this respect, the Committee notes the Government’s indication that the General Labour Inspectorate is competent to receive complaints of violations of the trade union rights of state workers and: (a) to participate as a conciliator, in accordance with the ruling by the Jurisdictional Disputes Tribunal of the Supreme Court of Justice of Guatemala; or (b) to submit them to the courts. The Government adds that the first of these channels is currently used to find alternative settlements to the innumerable collective disputes between the public administration and its employees.

With regard to the Tripartite Committee, the Committee notes the view of the mission that the Tripartite Committee requires technical assistance to improve its operation. It requests the Government to forward this assessment to the Tripartite Committee. According to the report of the mission, the Tripartite Committee fulfils a very valuable role of social dialogue and of slowing down undesired legislative initiatives and proposals, and of examining and resolving collective disputes, but it does not manage to make joint proposals in the case of most pending problems. The main conclusion of the mission is that in recent years, despite the various ILO missions, the serious problems raised by the Committee of Experts persist and that dialogue in the Tripartite Committee has not resolved them. In the meantime, the unionization rate, according to the trade unions, is between 0.5 and 1.88 per cent and the number of collective agreements is very low. In any case, detailed statistics of trade union membership and collective bargaining, including the number of workers covered, do not exist and it would be necessary to find a solution to this situation. The Committee observes that the mission welcomed the request by the Government (and the Labour Commission of the Congress) for additional ILO assistance to overcome the remaining problems, and for the organization of tripartite seminars on trade union rights in export processing zones.

The Committee notes the Government’s indication that the mission was very useful. As a result of its work, the Committee notes the Government’s indication that tripartite seminars have been carried out on freedom of association and collective bargaining in the export processing sector and that meetings were convened of the Legal Reform Subcommission, the pending issues were reviewed and priorities established, in terms of the subjects to be considered. The comments made by the Committee have been reviewed, and certain of them had already been reviewed and obtained consensus in 2001. The Committee notes the Government’s request for continued technical assistance.

Nevertheless, the Committee observes with concern that the serious problems on which it has been commenting for numerous years persist and that, despite the tripartite discussion at the national level and the technical assistance provided on various occasions, there has been no major progress. The Committee strongly hopes that the new Government, with the assistance of the mission suggested by the Conference Committee that will take place at the end of April 2008, will provide evidence of the political will to resolve these issues. The Committee requests the Government to provide information in its next report on any positive development that occurs in relation to the various issues referred to above.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the discussion held in the Conference Committee on the Application of Standards in June 2006 and in the context of Cases Nos. 2203, 2241, 2295, 2341, 2361, 2413, 2445 and 2482 presently before the Committee on Freedom of Association.

The Committee also notes the reply of the Government to the comments submitted by the Trade Union of Workers of Guatemala (UNSITRAGUA) on 26 August 2005, which the Committee had taken note of in previous comments and which refer principally to matters already raised by the Committee and treated in the cases examined by the Committee on Freedom of Association. In this regard the Committee takes note of the information provided by the Government, according to which UNSITRAGUA had accepted the Government’s invitation to present all the complaints submitted to the ILO supervisory bodies, and had presented a list of cases and concerns that will be analysed by the Government.

The Committee takes note of the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 12 July 2006, which refer to: (1) the climate of violence in which, in certain cases, trade unionists must carry out their union-related activities; (2) the dismissal of workers attempting to organize a union or engage in collective bargaining; (3) the circulation of blacklists; (4) acts of intimidation by employers aimed at trade unionists; (5) the tardiness of the administering of justice; (6) the low number of collective agreements concluded in the maquila sector. The Committee requests the Government to submit its observations thereon.

The Committee notes the general declarations of the Government, according to which efforts have been taken at the institutional level to ensure respect, administratively and legislatively, of the Committee’s observations. The Government emphasizes that the dimension of work is essential for the successful application of the Free Trade Agreement between Central America, the Dominican Republic and the United States, which entered into force in April 2005. In the context of this treaty a document entitled “Building upon progress: Reinforcing respect and capacities” was elaborated, which contains recommendations and concrete means to accelerate and improve the respect for labour laws and institutions, and which identifies six areas of priority for action intended to improve the rights of workers and comprised of the strengthening of the judicial system with respect to labour matters and guarantees of protection against discrimination in the workplace. The Government adds that, through the “Comply and Win” plan approved by the Government of the United States and the Ministry of Labour and Social Security, it has committed itself to publicizing and disseminating – by means of print media, radio and the Internet – the Labour Code, the ILO’s fundamental Conventions, and the establishment of the office of alternative dispute resolution. Moreover, in this framework, and with the financial support of the US Department of Labor, the ILO Subregional Office for Central America will carry out a project entitled “The strengthening of justice at work in Central America and the Dominican Republic.”

The Government adds that the Ministry of Labour and Social Security, through the Unit on International Labour Affairs, had initiated a process of training on the ILO and the State’s obligations with respect to ratified Conventions, intended for labour court judges, the appeals chambers of the Supreme Court, the Public Ministry’s Special Office on offences against journalists and trade unionists, and other public institutions. The Tripartite Commission, in particular its subcommittee on legal reform, continues to convene periodically in attempting to arrive, through consensus, at a resolution in response to the comments of the Committee of Experts. Further significant accomplishments include: scheduling bimonthly meetings of the tripartite subcommittees on legal reform; developing proposals on the procedures for the adjudication of labour violations; and maintaining constant contact with the Congressional Labour Committee in order to approve proposals formulated on a tripartite basis. The Government had put into motion a rapid response mechanism for cases, in the context of which eight conciliation meetings were held, each one concerning cases of violation of trade union rights. Finally, the Government indicates that the First Vice-Minister of Labour met periodically with representatives of workers’ and employers’ organizations in order to establish a permanent mechanism for dialogue intended to produce consensus.

The Committee recalls that, for several years, it has raised a number of points concerning the exercise of trade union rights in practice:

Failure to comply with orders to reinstate dismissed trade unionists. The Committee notes that, according to the Government, after having consulted the labour court judgements, it had not found any pending reinstatement orders. It adds however that, before the Chamber of amparo (protection of constitutional rights) and Interim Judgements of the Supreme Court, there are actions in amparo pending that have prevented the execution of orders to reinstate until a final decision has been rendered.

Tardiness of the procedure to impose penalties for breaches of the labour legislation. In this regard, the Committee notes that, according to the Government, the Special Commission on Reforms in the Legal Sector had rendered a favourable judgement with respect to the reform of 12 articles of the law on amparos and their constitutionality, with the goal of accelerating the procedures, obtaining more effective protection of fundamental individual rights, so as to render such protection equal to those afforded other rights to which recourse may be had. The Congress of the Republic had in its third reading approved the discussion and approval of reforms to the law, which was transmitted to the Constitutional Court. The Government adds that, according to the statistical information compiled by the Supreme Court, there are no complaints respecting the tardiness of the procedures for sanctions against violations of trade union rights. The Committee observes nevertheless that the trade unions had previously drawn attention to the problem of the slowness of the procedures.

Need to promote trade union rights in export processing zones (maquila enterprises). The Committee takes note of the Government’s indication that a national political project of consultation is developing that is free to workers wishing to unionize and consists of three phases: (1) the elaboration of educational materials on freedom of association; (2) the training of civil servants in the Labour Ministry on issues concerning collective rights at work and administrative rights; (3) the establishment of free legal counselling services in the central headquarters and regional offices of the Ministry of Labour; (4) the evaluation of the functioning and continuity of the project. The Government adds that since 2003 ten labour inspectors in the maquila sector have been trained, and that a special unit is charged with complaints and disputes at work. The Committee also refers to the existence of a conflict prevention body within the maquila sector, the principal function of which consists of coordinating the dissemination of information on rights at work to workers, managing directors and middle managers in the maquila sector. The Government indicates that, in August 2006, a tripartite seminar was held on association rights on rights at work and trade union rights in the maquila sector, with the support of the ILO subregional office. According to the Government, there are actually eight industrial textile unions in the maquila sector and, between January and March 2006, two new trade unions have been registered, comprised of 24 and 27 affiliates, respectively.

Numerous anti-union dismissals and violations of collective agreements. In this respect the Committee notes that the Government provides general information on the number of complaints presented and the measures in progress concerning these complaints, in different regions and export processing zones. The Committee also notes the Government’s statements, according to which the tripartite commission on international labour affairs had promoted the establishment of a rapid intervention mechanism for complaints relating to trade union rights, in the context of which nine cases were heard in 2005, and four in 2006. Moreover the Government provides information submitted by various labour tribunals demonstrating that, in one tribunal for instance, 241 trials concerning reinstatement, termination of contract and reprisals were in progress. The Committee notes nevertheless that, for example, two complaints concerning anti-union discrimination in the private sector and five in the municipal sector had been submitted to the Sixth Regional Chamber of Quetzaltenango of the Ministry of Labour and Social Security. As concerns the dismissal of trade union officers, the Committee notes that there were 25 complaints in the private sector and 18 in the municipal sector. As concerns the failure to apply collective agreements, there were two complaints in the private and 18 complaints in the municipal sectors. According to the information provided by the tribunals, there were no cases concerning violation of a collective agreement. Finally, there were 16 complaints relating to the export processing zones.

In its previous comments the Committee had noted the comments submitted by several national and international trade union organizations, and had highlighted the very high number of dismissals of trade union officers and the recurring violations of the right to collective bargaining, including in the public sector.

Inadequate guarantees in the procedure for the termination of civil servants (section 79 of the Civil Service Act; section 80 of its implementing regulation; Decree No. 35-96 amending Decree No. 71-68 of the Congress of the Republic and Government Order No. 564-98 of 26 August 1998). As concerns this issue, the Committee notes the Government’s indication that the persons affected may submit an administration appeal before the National Chamber of the civil service (articles 79 and 80 of the Law on civil service and its regulation) and may also appeal to the judicial tribunals in conformity with the labour legislation.

Need for the Code of Labour Procedures to be subject to in-depth consultations with the most representative organizations of workers and employers. The Committee notes the indications of the Government, according to which the Code of Labour Procedures is not on the agenda of the tripartite commission on international labour affairs, or that of the tripartite subcommittee on legal reform, and that there exists no will or support from any quarter to propose consultations with the most representative workers’ and employers’ organizations.

Statistics. The Committee notes the abundant statistical information submitted by the Government concerning complaints in different regions of the country, from 2005 to the beginning of 2006, as well as the complaints arising out of the maquila sector from 2004 up to the beginning of 2006.

Generally speaking, the Committee observes that the majority of complaints arise out of the private sector, although the number of complaints in the public sector remains significant. The facts revealed relate principally to: violations of collective agreements; acts of employer interference; acts of anti-union discrimination, particularly in the context of trade union formation; and anti-union dismissals. In the majority of cases, the procedures resulted in conciliations or the withdrawal of the case. The Committee observes that the number of sanctions is very low; in fact, the statistics provided by the Government indicate not one case involving sanctions.

Reform of the Civil Service Bill. As regards the reform of the Civil Service Bill, the Committee notes the Government’s statement that it had organized broad consultations with all sectors of society and had sent the draft Bill to Congress in November 2005, however the Congressional labour committee had issued an unfavourable decision regarding the said Bill.

Technical mission. Taking note of the measures adopted by the authorities and the results of the dialogue held in the Tripartite Commission, the Committee reiterates its concern with the persistence of the problems it had been raising for several years. In this respect, the Committee welcomes the Government’s recent acceptance of a technical mission in the country and expresses the firm hope that this would help the Government to take the necessary measures to bring the national legislation into conformity with the requirements of the Convention. The Committee requests the Government to keep it informed in this regard.

Awaiting the result of the mission accepted by the Government, the Committee will not proceed with a detailed examination of the pending issues. The Committee wishes however to refer to the conclusions of the Conference Committee, which requested the Government to take the necessary measures without delay to bring the law and practice into full conformity with the Convention in the near future, in both the public and private sectors, and urged the Government to adopt further measures for the effective protection of the rights set out in the Convention for workers in export processing zones.

The Committee considers that the Government should provide additional information to the technical mission and the Committee on the issues raised in the present observation, including statistics on collective agreements, and information on the coverage and rate of unionization, as well as an evaluation by the tripartite committee of certain issues in particular which remain deficient in the institutional system for the defence of trade union rights.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the observations on the application of the Convention sent by the National Trade Union Federation of State Workers of Guatemala (FENASTEG), the Trade Union Confederation of Guatemala (UNSITRAGUA), the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL).

The problems referred to by the Committee relate to restrictions on the exercise of trade union rights in practice, as follows:

–      cases of failure to comply with court orders to reinstate dismissed trade union members;

–      tardiness of the procedure to impose penalties for breaches of the labour legislation (including violations of trade union rights), with some cases taking five years to process;

–      the need to promote trade union rights (particularly collective bargaining) in export processing zones (maquila enterprises) (where there are only two unions and appear to be only two collective agreements);

–      numerous anti-union dismissals; UNSITRAGUA has referred to a very high number of anti-union dismissals in the private sector and in the public sector; according to the Union of Guatemalan Workers (UGT), one-third of municipal trade union workers have been dismissed;

–      inadequate guarantees in the procedure for the termination of public servants (section 79 of the Civil Service Act; section 80 of its implementing regulation; Decree No. 35-96 amending Decree No. 71-68 of the Congress of the Republic and Government Order No. 564-98 of 26 August 1998);

–      violation of collective agreements (in over 60 per cent of cases, according to UNSITRAGUA);

–      the need for the Code of Labour Procedures to be the subject of in-depth consultations with the most representative organizations of workers and employers.

The Committee notes that, according to the Government: (1) it has sought ILO accompaniment for the first national seminar on labour and trade union rights in the maquila sector in response to an undertaking with the direct contacts mission held in May 2004, and has appointed five labour inspectors for the maquila sector; supervisory actions amount to 1,668 (visits) and 2,015 (conciliation); (2) the Code of Labour Procedures initiative in the Congress of the Republic has no support from any sector; (3) the rapid response mechanism recommended by the direct contacts mission to deal with complaints concerning trade union rights is now operational and five complaints are currently being processed; (4) all the points the Committee raised concerning the application of the Convention are being examined by the employers’ sector with a view to amending the legislation in order to overcome the problems; (5) the Ministry of Labour has asked the Congress of the Republic to consult with the National Tripartite Committee about the proposals for substantive and procedural provisions awaiting approval, and is doing its utmost to obtain the approval of Congress for the initiatives agreed to by the Tripartite Committee.

The Committee notes the observations sent by the trade unions to the effect that: (1) the new Civil Service Bill is inconsistent with the provisions of Convention No. 98 in many areas; (2) the Government has confirmed that there are two trade unions in the maquila sector with 53 members, but does not indicate the total number of workers in the sector, or express the membership of the two unions as a percentage of total workers or number of enterprises; (3) the Constitutional Court has recently declared null and void the system of penalties for breach of the labour law; (4) section 414 of the Penal Code (which deals with the offence of disobedience) provides for progressive fines for failure to comply with orders to reinstate dismissed workers, the penalty is a monetary one and of little significance in practice; (5) according to the figures supplied by the Government, only 17 per cent of the trade unions in operation (389) have managed to conclude collective agreements; (6) tardiness in proceedings for anti-union discrimination is a widespread problem that is causing systematic destruction of trade unions (the membership rate is less than 0.5 per cent of the economically active population) and there are delays of up to ten years; (7) there are numerous cases of dismissal for the formation of trade unions or for collective bargaining; (8) one-third of municipal trade union leaders have been dismissed by mayors, and labour inspectors refrain from intervening in labour disputes in municipalities. The abovementioned organizations cite numerous cases of anti-union discrimination in the public and private sectors and send copies of a number of reinstatement orders which have not been obeyed.

The Committee notes with regret that the problems it has been raising for years have not abated and that the measures taken to resolve them, particularly referral of the problems to the Tripartite Committee, have been unsuccessful. The Committee expresses its concern at this matter and urges the Government to take the necessary steps to bring its law and practice into conformity with the requirements of the Convention, and to keep the Committee informed.

With regard to the Bill on the reform of the Civil Service, the Committee notes the Government’s statement that it is still being discussed, inter alia, with the trade unions. In view of the concern expressed by the trade union organizations and their many objections to the Bill, the Committee requests the Government to make every effort to pursue dialogue with the abovementioned organizations and to ensure that the future law is not contrary to the provisions of the Convention.

The Committee reminds the Government that technical assistance from the Office is available to help to solve all the above problems.

[The Government is asked to supply full particulars to the Conference at its 95th Session and to reply in detail to the present comments in 2006.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information provided by the Government, the discussion in the Conference Committee on the Application of Standards in June 2003, the report of the direct contacts mission which visited Guatemala from 17 to 20 May 2004 and the comments on the application of the Convention made by the following organizations: the Trade Union Confederation of Guatemala (UNSITRAGUA), the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Government’s reply to many of the matters raised in these comments. The Committee requests the Government to examine in the framework of the National Tripartite Commission the issues raised by UNSITRAGUA, many of which have been submitted to the Committee on Freedom of Association or relate to problems of legal interpretation or case law. The Committee requests the Government to provide information in this respect.

The problems referred to by the Committee relate to restrictions on the exercise of trade union rights in practice, as follows:

n  cases of failure to comply with court orders to reinstate dismissed trade union members;

n  tardiness of the procedure to impose penalties for breaches of the labour legislation (including violations of trade union rights), with some cases taking five years to process;

n  the need to promote trade union rights (particularly collective bargaining) in maquila enterprises (there only exist two trade unions and there appear only to be two collective accords);

n  numerous anti-trade union dismissals; UNSITRAGUA has referred to a very high number of anti-trade union dismissals in the private sector and the public sector; according to the Union of Guatemalan Workers (UGT), one-third of municipal trade union leaders have been dismissed;

n  the insufficiency of the guarantees in the procedure for the termination of public servants (section 79 of the Civil Service Act; section 80 of the Regulations under this Act; Decree No. 35-96 amending Decree No. 71-86 of the Congress of the Republic and Government Accord No. 564-98 of 26 August 1998);

n  the violation of collective accords (in over 60 per cent of cases, according to UNSITRAGUA); and

n  the need for the Code of Labour Procedures to be the subject of in-depth consultations with the most representative organizations of workers and employers.

The Committee notes the Government’s statements that: (1) meetings are being held between the Tripartite Commission on International Labour Affairs and the Labour Commission of the Congress of the Republic on the questions raised by the Committee; (2) there are three drafts of procedural reform, one of which is more likely to be adopted in the very near future, and that these initiatives will be the subject of consultations with the social partners; (3) there are two trade unions active in the maquila sector, with 53 members; (4) the new system of penalties set forth in the legal reform of 2002 is beginning to be operational and its dissuasive effects are perceivable; up to February 2004, around 5,000 fines were imposed for violations of labour laws; action has been taken to accelerate procedures for the collection of fines and to make the administrative process relating to penalties more efficient; (5) information will be provided on court rulings relating to the offence of non-compliance (failure to comply with orders for the reinstatement of workers); (6) there are four collective accords in the maquila sector; (7) there are no indications of actual complaints relating to the dismissal of municipal leaders, although they have the right not to be removed from their positions (section 223 of the Labour Code); (8) there are 50 collective accords in private enterprises and 20 in the public sector; (9) there is no concrete information (judicial or administrative) as to the existence of massive dismissals on grounds of anti-union discrimination; (10) information will be provided on the allegations of violations of collective accords; and it is not possible to affirm with certainty that 60 per cent of the accords are not complied with; and (11) the lack of speed of the procedures is not the result of an anti-union policy, but rather a structural problem of any administration of justice.

The Committee notes that the report of the direct contacts mission emphasizes certain of the measures adopted by the Government, and particularly the establishment of a special unit of the labour inspectorate for the maquila sector (where four collective accords have been concluded), and the new alternative system for the settlement of disputes which began operating in September 2004, as well as the reinforcement of penalties in the event of failure to comply with court orders or awards. The Committee noted previously that section 414 of the Penal Code has been updated and provides for a fine of up to 51,000 quetzales for failure to comply with an order issued by an authority. Moreover, the Committee of Experts had already been informed of the existence of three draft texts for the Procedural Labour Code which were before Congress and the Government had indicated that this matter would be submitted to the Tripartite Commission.

The Committee observes that, in their comments, the ICFTU and UNSITRAGUA refer to a very high number of anti-union dismissals in both the public and the private sectors, as well as to cases which illustrate the tardiness and ineffectiveness of legal proceedings, and to violations of the right to collective bargaining.

The Committee expresses appreciation of the measures adopted and the commitments made by the Government during the direct contacts mission, with particular reference to the following:

(1)  the Ministry has submitted to the Tripartite Commission the legislative matters raised by the Committee of Experts so that it can review them regularly with a view to their possible amendment;

(2)  the Ministry has requested the Labour Commission of the Congress of the Republic to consult the Tripartite Commission on International Labour Affairs concerning the initiatives that are awaiting approval in relation to substantive and procedural reforms;

(3)  the Ministry is in agreement with the establishment of a mechanism for rapid intervention for the examination of denunciations and complaints to the ILO so that an attempt can be made to find a solution to the problems raised within 15 days before the complaints and denunciations are forwarded to the ILO. This mechanism would make it possible for the ministerial authorities to take special action and could be referred to a subcommittee of the Tripartite Commission;

(4)  the Ministry has issued a circular to labour inspectors instructing them in cases of anti-union discrimination not to complete the administrative procedures without having identified situations of anti-union discrimination which merit preventive measures or sanctions with a view to applying the penalties envisaged in the Labour Code; and

(5)  the mediators and conciliators of the alternative dispute system could address the issue of the failure to comply with collective accords. In this respect, the Ministry will request the collaboration of the ILO and other organizations for the training of these mediators and conciliators. Other labour inspectors could also be included in this type of activity.

The Committee requests the Government to provide information on the effect given to all of these commitments undertaken during the direct contacts mission and hopes that in the near future the Government will be in a position to report on concrete progress in relation to the problems raised.

The Committee emphasizes that developments in relation to the outstanding problems depend principally on the work of the Tripartite Commission and the future Procedural Labour Code (which will have to address the problems relating to the shortcomings in the functioning of justice, and particularly the excessive slowness of procedures and the failure to comply with court orders relating to acts of anti-union discrimination). The Committee emphasizes the significant number of outstanding problems and the seriousness of a number of them. The Committee urges the Government to make every effort to overcome the problems raised and to ensure the full exercise of the rights set out in the Convention.

The Committee requests the Government to provide detailed information on: (1) the current procedures for the dismissal of public servants, particularly from the point of view of their right of defence and the recourse available; (2) cases which have arisen in recent years of failure to comply with orders for the reinstatement of dismissed workers; and (3) the average duration of administrative and judicial proceedings in cases of the violation of trade union rights.

Finally, noting the limited number of collective agreements, the Committee requests the Government to take measures, in consultation with the social partners, to promote collective bargaining in the country and to ensure that effect is given in practice to the collective agreements concluded.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the discussion that took place in the Conference Committee on the Application of Standards in June 2003. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) (18 September 2002), the General Confederation of Workers of Guatemala (CGTG) (11 September 2002 and 27 January 2003), the Guatemalan Union of Workers (UGT) (30 October 2002), and the Government’s response to them.

1. Failure to comply with court orders to reinstate workers dismissed for trade union activities. The Committee notes the Government’s statement in its report that section 414 of the Penal Code (which the Committee requested the Government to amend) has been amended by Decree No. 57-2000 and that failure to obey final orders and sentences handed down by the judicial authority is penalized by a fine of from 5,000 to 50,000 quetzales (replacing the former amounts of 250 to 5,000 quetzales). The Government adds that in 2003 the courts registered no instances of failure to comply with court decisions ordering reinstatement. The Committee requests the Government to keep it informed of instances of failure to comply with reinstatement orders.

2. Tardiness of the procedure to impose penalties for breach of labour legislation, particularly in the event of complaints for breach of trade union rights (according to the ICFTU some cases have taken five years to process). The Government states that in May 2003, it sent several Bills to the Congress of the Republic to amend the Labour Code in order to speed up the processing of labour cases by introducing improvements, which the Government lists (oral proceedings, concentration of procedures, cautionary measures in favour of workers, a two-month deadline for the holding of hearings, etc.). The Government hopes that positive results will be achieved with these Bills before the end of 2003. The Committee requests the Government to keep it informed in this regard.

3. Information requested by the Committee on the procedure for consultation and negotiation in the public sector (Legislative Decree No. 35-96). Comments by FENASTEG on the denial of the right to collective bargaining for state workers, through the failure to include the necessary funds in the general state budget. The Committee notes that according to the Government, since 2002, 16 collective agreements have been concluded in state bodies (including ministries and municipalities), and that the legislation requires collective bargaining in such bodies to take place before the approval of the budget. The Government adds that the bargaining is conducted either directly or through judicial channels, in which case, the judicial authority may order the bargaining.

4. Government Agreement No. 60-2002, which according to the CGTG, restricts collective bargaining by suspending in the public sector the grant of general wage increments and other benefits. The Committee notes with interest the information in the Government’s report that the Constitutional Court has ruled that these restrictions to collective bargaining are unconstitutional.

5. The ICFTU’s comments on the non-existence of collective agreements in export processing zones. The Government states in its report that 22 collective agreements were approved in the private sector (two in enterprises in export processing zones); and that between 1998 and 2002, 129 collective agreements were approved in the private and public sectors. The Committee further notes that the Government has penalized enterprises in export processing zones which fail to comply with the labour legislation and, as required by the legislation, has so informed the Ministry of the Economy with a view to the cancellation of their entitlement to tariff benefits. The Government also states that the establishment of a high-level inter-institutional body is about to be approved and that it will comprise representatives of all state authorities having competence in matters relating to exports and export processing. Noting how few collective agreements exist in export processing zones, the Committee requests the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment, by means of collective agreements, in enterprises in the export processing zones, and to provide information in its next report on any new collective agreements concluded in this sector.

6. The UGT’s comment that one-third of municipal trade union leaders have been removed from office by mayors. The Committee requests the Government to reply to these comments.

7. UNSITRAGUA’s recent comments of 17 July, 25 August and 1 September 2003 and comments of 18 October 2001 by the World Confederation of Labour (WCL). The Committee requests the Government to send its response to the above comments.

8. The Committee notes that the Government has agreed to the sending of a direct contacts mission, and expresses the hope that the mission will be carried out in the very near future.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. The Committee also notes the comments forwarded with the Government’s report by the National Federation of State Workers’ Unions of Guatemala (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA) on the application of the Convention.

The Committee notes that it has been referring for several years to the lack of any consultation procedure (in the context of collective bargaining in the public sector, regulated by Legislative Decree No. 35-96) to enable trade unions to express their views to the financial authorities so that the latter can take them duly into account in preparing the budget. In this respect, the Committee notes the Government’s indication that there exist direct negotiation procedures for the negotiation of collective accords for public employees and that consultations with employers’ and workers’ organizations are held in writing, through meetings and other means. In these conditions, the Committee requests the Government to provide fuller information in its next report on the consultation and negotiation procedures covering the terms and conditions of employment of workers in the public sector, and particularly whether sufficient time is given to trade union organizations prior to the discussion of the budget.

In its previous observation, the Committee also referred to the failure to comply with final court decisions ordering the reinstatement in their jobs of workers dismissed for trade union activities. The Committee had requested the Government to take steps to have section 414 of the Penal Code amended to strengthen the penalties for failure to comply with the orders and rulings of the judicial authority (currently punishable by fines, the amounts of which are extremely out of date) so that final decisions imposing penalties for anti-trade union discrimination are effectively complied with. In this respect, the Committee notes the Government’s indication that the current legislation empowers the Ministry of Labour to drastically penalize failure to comply with the rulings of labour tribunals and that the Ministry of Labour has initiated a discussion with trade union organizations, employers and jurists, the intended outcome of which is a single procedure to facilitate the processing of labour-related matters and that positive results are expected before the end of the year. The Committee hopes that, as a result of the tripartite debate announced by the Government on this subject, measures will soon be adopted to ensure rapid and effective compliance with judicial decisions ordering the reinstatement in their jobs of workers dismissed for trade union activities and that effective penalties will be established for failure to comply with such decisions. The Committee requests the Government to provide information on the number and nature of the penalties imposed by the Ministry of Labour and/or the judicial authorities for failure to give effect to final decisions ordering reinstatement.

The Committee notes that the Government has not supplied its observations on the comments made by UNSITRAGUA, forwarded with the Government’s report, on the slowness of procedures relating to penalties for infringements of the legislation and the processing of complaints relating to violations of trade union rights, the compilation of blacklists by BDO Platero y Asociados of unionized workers, the dismissal of trade union leaders of the Ministry of Public Health and Social Assistance, the municipalities of El Tumbador, San Marcos, and San Juan Chamelco (Alta Verapaz), the enterprises ACRICASA and INAPSA, the failure to comply with reinstatement orders issued by the Ministry of Labour for unionized workers dismissed by the enterprise Corporación Bananera, and the violation of the right to collective bargaining as a result of the adoption of Governmental Agreement No. 60-2002 of the Ministry of Public Finances. In view of the lack of observations by the Government on the comments of UNSITRAGUA, the Committee: (1) reiterates the comments made in the previous paragraph where it noted certain measures adopted by the Government; recalls that in its previous observation it had noted the existence of draft and preliminary draft legislation intended to overcome the delays and inefficiencies of judicial procedures in cases of anti-union discrimination; and requests the Government to provide information in its next report on whether the above have been adopted and whether it is planned to take any other measures; (2) requests the Government to carry out an investigation into the allegations of anti-trade union discrimination and, if they are found to be true, to take the necessary compensatory measures; and (3) requests the Government to provide a copy of the Governmental Agreement referred to by UNSITRAGUA.

With regard to the comments made by FENASTEG, forwarded with the Government’s report, concerning the denial of the right to collective bargaining for state workers, through the failure to include the necessary funds in the general state budget, the Committee notes that the Government has not supplied its observations on this matter. In these conditions, the Committee requests the Government to take measures to give full effect to the provisions of Articles 4 and 6 of the Convention so as to ensure that public servants who are not engaged in the administration of the State find the necessary support from the budgetary authority in exercising the right to collective bargaining. The Committee recalls in this respect that budgetary powers reserved for the legislative authority should not have the effect of impeding compliance with collective agreements concluded directly by these authorities or on their behalf.

The Committee notes that the International Confederation of Free Trade Unions (ICFTU) made an observation on the application of the Convention in a communication dated 10 January 2002. The ICFTU refers in general terms to: (1) the dismissal of unionized workers and the impossibility of achieving compliance with judicial decisions ordering the reinstatement of these workers in banana enterprises (a subject addressed in the paragraphs above); and (2) the existence of anti-union conduct in enterprises in export processing zones where collective agreements cannot be negotiated and do not exist and where workers who attempt to establish trade unions are physically aggressed by groups organized by enterprises (for example, in the export processing enterprises Cimatextiles and Choi Shin) and threatened with dismissal. The Committee regrets that the Government has not supplied its comments on these observations. The Committee requests the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, with a view to the regulation of terms and conditions of employment by means of collective agreements in enterprises in export processing zones and to provide information in its next report on any new collective agreement concluded in this sector. In view of the Government’s lack of response to the comments of the ICFTU relating to acts of violence because of the establishment of trade union organizations, the Committee emphasizes in general terms that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of trade unions and it requests the Government to endeavour to ensure compliance with this principle in enterprises in export processing zones and to inform it of any measure adopted in this respect.

With regard to the comments by UNSITRAGUA criticizing the draft Code of Labour Procedure submitted by the authorities, leaving aside the draft on which workers and employers had reached agreement, the Committee is addressing this subject in a direct request in the context of its examination of the application of Convention No. 87.

Finally, the Committee notes that the ICFTU, the General Confederation of Workers of Guatemala (CGTG) and the Guatemalan Union of Workers (UGT) have recently sent observations on the application of the Convention. The Committee requests the Government to supply its comments in this respect.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the report of the direct contacts mission carried out in Guatemala from 23 to 27 April 2001. The Committee also notes the comments of 8 June 2001 submitted by the Trade Unions and People’s Action Unit (UASP) and the Government’s reply thereto. The Committee asks the Government to enlarge on its reply by answering the UASP’s questions point by point.

The Committee notes with satisfaction the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April (during the direct contacts mission), which responds to a request from the Committee by eliminating (pursuant to new section 222 of the Labour Code) the requirement of two-thirds of the union’s membership in order for a draft collective agreement to be negotiated and signed, as prescribed in regulation 2(d) of the Regulations on Collective Agreements, of 19 May 1994.

The Committee notes with interest the adoption of Legislative Decree No. 18-2001 of 14 May which substantially reinforces the obligation to reinstate workers dismissed on trade union grounds and the penalties for breach of the Labour Code which are based on a variable number of minimum wages.

The Committee nonetheless observes that the reform does not address another point raised concerning the legislation: the lack of any consultation procedure (in the context of collective bargaining in the public sector, regulated by Legislative Decree No. 35-96), to enable trade unions to express their views to the financial authorities so that the latter may take due account of them in preparing the budget. The Committee asks the Government to take steps to have such consultations guaranteed by law.

Regarding the question raised in the mission report, concerning the failure to comply with final court decisions ordering the reinstatement in their jobs of workers dismissed for trade union activities, the Committee asks the Government to take steps to have section 414 of the Penal Code amended so as to strengthen the penalties for failure to obey the orders and sentences of the judicial authority (currently punishable by fines, the amounts of which are quite out of date), and so that final decisions imposing penalties for anti-trade union persecution are effectively complied with.

The Committee notes that, according to the mission report, there are three drafts or preliminary drafts of a code of procedure for labour matters, the purpose of which is to overcome the delays and inefficiencies of judicial procedures, particularly in the event of anti-union discrimination. The Committee asks the Government and the social partners to hold discussions as to the most appropriate procedures as soon as possible and to keep it informed of developments regarding whichever draft is adopted.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

The Committee also notes the information of the Government to the effect that in the framework of technical cooperation the Office has provided it with a draft to address the comments of the Committee, and the Tripartite Committee concerning international labour issues is working on preparing draft reforms by consensus to put before the Congress of the Republic.

The Committee had asked the Government to amend section 2(d) of the Regulation for the procedures of negotiation, official approval and rejection of collective agreements, dated 19 May 1994, which requires a draft collective agreement to be submitted to the General Labour Inspectorate together with the certification of the fact that the General Assembly of the trade union in question voted, by a majority of two-thirds of its total membership, to authorize those serving on its executive committee to conclude, approve and endorse, subject to a referendum or definitively, the draft agreement, since it considered that the required percentage was too high and that it could well obstruct the conclusion of collective agreements. The Committee notes that the Government reports the existence of a tripartite committee to draft reforms in this regard, and asks the Government to take the measures necessary to ensure that the point in question comes before the Committee, and to keep it informed in this connection.

Equally, regarding Legislative Decree No. 35-96, which under its section 2(a) provides that bargaining in respect of collective agreements or conventions in the public sector shall take into account the legal possibilities of the general state income and expenditure budget, the Committee requested the Government to establish a mechanism whereby trade union organizations and employers are adequately consulted so as to be able to express their points of view to the financial authorities sufficiently in advance, so that these authorities may take due account of them when formulating the budget. The Committee notes that the Government indicates in its report that section 53(b) of the Labour Code provides that workers may denounce a collective agreement in force at least one month before its expiry date. This means that the denunciation and subsequent consultations, where the workers may express their point of view before the financial authorities, may take place sufficiently in advance prior to the elaboration and approval of the State Budget. The Committee notes that while the period allowed for consultation is adequate, no legislation has been introduced to ensure the consultation process. Consequently, the Committee again requests the Government to take the measures necessary to amend the legislation as indicated and inform it in its next report in this connection.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report made by the Government and Legislative Decree No. 35-96 on the Regulation of Strikes by State Workers. Similarly, the Committee notes the observations made by the Confederation of Trade Union Unity of Guatemala (CUSG) objecting to the provisions of the above decree.

The Committee recalls that in a previous direct request it referred to section 2(d) of the Regulation for the procedures of negotiation, official approval and rejection of collective agreements, dated 19 May 1994, which requires a draft collective agreement to be submitted to the General Labour Inspectorate together with the certification of the fact that the General Assembly of the trade union in question voted, by a majority of two-thirds of its total membership, to authorize those serving on its executive committee to conclude, approve and endorse, subject to a referendum or definitively, the draft agreement. In this respect, although it notes that the Government states that this provision has not caused difficulties for the negotiation of collective agreements on working conditions, the Committee considers that the required percentage is too high and that it could well obstruct the conclusion of collective agreements. The Committee considers that it is up to trade union organizations to stipulate in their rules the relevant requirements and that, in any event, the percentage of voters required by legislation should be limited to a simple majority. The Committee requests the Government to take measures to amend the regulations in question as indicated and to provide information in its next report on the measures adopted in this respect.

With regard to Legislative Decree No. 35-96 on the Regulation of Strikes by State Workers, the CUSG claims that the autonomy of the parties to collective bargaining is restricted under the provisions of section 2(a), which provides that bargaining in respect of collective agreements or Conventions shall take into account the legal possibilities of the general state income and expenditure budget. In this respect, the Committee considers that the wording of the provision does not appear in itself to be incompatible with the principles of collective bargaining. Notwithstanding, the Committee considers that in order to allow the parties freely to conclude an agreement, a mechanism should be established whereby, within the collective bargaining process in the public sector, trade union organizations and employers are adequately consulted so as to be able to express their points of view as soon as possible to the financial authorities, so that these authorities may take due account of them. Consequently, the Committee requests the Government to take the measures necessary to amend the legislation as indicated and to provide information in its next report on the measures adopted in this respect.

Finally, the Committee observes that in its communication, the CUSG criticizes inter alia the following provisions of the Legislative Decree referred to: (1) section 2(b) which provides that where proof of having exhausted direct means is not provided, there will be no follow-up to the settlement of the dispute in question, thereby obliging a judge ex officio to adopt the measures necessary for proving this state of affairs; and (2) section 2(c), second paragraph and c(1) relating to acts which do not constitute reprisals within a collective dispute (resignation of a worker, legal grounds for justified dismissal and the withdrawal of labour in essential services). The Committee considers that the provisions to which objections were raised do not violate the Convention.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and the Regulations for the procedures of negotiation, official approval and denunciation of collective agreements of 19 May 1994.

The Committee notes that section 2(d) of the Regulations requires the draft collective agreement to be submitted to the General Labour Inspectorate along with certification whereby the general assembly of the trade union in question approved by two-thirds of the total membership, authorizes the members of its executive committee to conclude the draft collective agreement.

In this matter, the Committee considers that the requirement of two-thirds of the total membership for a trade union to be allowed to conclude a collective agreement seems excessive and could make it difficult in practice to conclude collective agreements. The Committee considers that it should be for the unions to decide on this subject-matter.

The Committee also observes that both section 5 and section 6 of the Regulations lay down that for a collective agreement to be officially approved the documents must meet the legal requirements and the agreement must be in keeping with the provisions of the law.

The Committee recalls that legislation which submits collective agreements to prior approval of the administrative authority is compatible with the Convention provided that approval may be refused only if the collective agreement has a procedural flaw. On the other hand, if legislation allows the authorities full discretion to deny approval or stipulates that approval must be based on criteria such as compatibility of the Convention with general or economic policy of the Government or official directives on wages and conditions of employment, it in fact makes the entry into force subject to prior approval, which is a violation of the principle of autonomy of the parties to the negotiation and, consequently, contrary to the Convention.

In this respect, the Committee requests the Government to specify the scope of the expressions "the documents must meet the legal requirements and the agreement must be in keeping with the provisions of the law" in order to be approved, so that it can ascertain if these are procedural requirements or if they refer to substantive aspects as indicated in the previous paragraph. Furthermore, the Committee requests the Government to inform it in its next report whether the labour authorities have refused to approve collective agreements during the period covered by the report and, if so, to indicate the grounds for refusal.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

With reference to its previous comments in which it asked the Government to indicate the measures that had been taken to increase the fine of between one hundred (100) and one thousand (1,000) quetzales (section 272(a) of the Labour Code), imposed on employers who oblige or try to oblige workers to relinquish membership of their union or to join a union (section 62(c)) to ensure that this penalty remained sufficiently dissuasive, the Committee notes with satisfaction that Decree No. 64-92 of 2 December 1992 provides in section 24(a), for an increase in the above fine which is now of between one thousand five hundred (1,500) and five thousand (5,000) quetzales.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 1 of the Convention. In previous comments, the Committee urged the Government to indicate the measures it had taken to re-examine, in the light of inflation, section 272 (a) of the Labour Code of 1961, which lays down a fine of between 100 and 1,000 quetzales for employers who make it compulsory or attempt to make it compulsory for workers to leave the unions of which they are members or to join trade unions (section 62 (c)) so that this sanction retains its dissuasive nature.

The Committee notes that a draft Labour Code which takes account of the Committee's comments has been approved at first reading and is now before the Congress of the Republic for examination and analysis.

The Committee hopes that the draft Labour Code will be adopted in the near future and that the final version will provide for sufficiently effective and dissuasive sanctions for all cases of anti-union discrimination. The Committee asks the Government to report on this matter.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 1 of the Convention. The Committee once again urges the Government to indicate in its next report the measures that it has taken to re-examine, in the light of inflation, section 272(a) of the Labour Code of 1961, which lays down a fine of between 100 and 1,000 quetzales for employers who make it compulsory or attempt to make it compulsory for workers to leave the unions of which they are members or to join trade unions (section 62(c)), so that this sanction retains its dissuasive nature.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

In the observation it made in 1987, the Committee requested the Government to indicate the measures that had been taken to repeal or amend section 4 of Decree No. 1786 of 10 September 1968, under which workers in autonomous and semi-autonomous state undertakings are only granted the right to present collective petitions of an economic and social nature to the executive authorities, and thereby granting public servants not engaged in the administration of the State the same rights of free collective bargaining as workers in the private sector, thereby bringing this point of the legislation into full conformity with the Convention (Articles 4 and 6).

The Committee notes with interest that the 1986 Political Constitution, in sections 102(q) and 116 grants freedom of association and collective bargaining to all workers in both the public and the private sectors.

The Committee also notes with satisfaction the Decree issued under the Act respecting the organisation and regulation of strikes for state employees, No. 71-86, which came into force on 1 January 1987 and which contains provisions setting forth the procedures for the exercise of the right to organise, collective bargaining and the right to strike in the public sector, which were previously prohibited.