Report in which the committee requests to be kept informed of development - Report No 259, November 1988

Case No 1459 (Guatemala) - Complaint date: 20-JUN-88 - Closed

1. 275. A complaint of violation of freedom of association against the
   • Government of Guatemala has been presented by the Unified Trade Union
   • Confederation of Guatemala (CUSG) in a communication dated 20 June 1988. The
   • Government sent information and observations on this case in a communication
   • dated 7 September 1988.
2. 276. Guatemala has ratified the Freedom of Association and Protection of the
   • Right to Organise Convention, 1948 (No.87) and the Right to Organise and
   • Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 277. In its complaint the CUSG alleges arbitrary acts by the Government
   • affecting human rights and freedom of association, and in particular, delays
   • in registering trade unions, dismissal of workers who group together in works
   • committees and attempt to form trade unions, refusal to assist workers in
   • applying agreements concluded and the development of "solidarism".
2. 278. As regards the delays in registering trade unions, the CUSG explains
   • that registration documents are lying around in the offices of the Ministry of
   • Labour, so that the registration procedure is being held up, and notes that it
   • is strange that this applies only to trade union organisations, since other
   • organisations obtain registration quickly. Therefore, according to the
   • complainant, the Ministry is infringing the right of association by making the
   • law inoperative.
3. 279. As regards the dismissal of workers, the CUSG states that the Mayor of
   • the town of San Antonio Suchitepéquez committed arbitrary acts against the
   • workers. He dismissed a group of manual workers, including the executive of
   • the trade union which was in the process of being set up. According to the
   • complainant confederation, events occurred as follows: first of all, the Mayor
   • attempted to provoke a confrontation which could have resulted in loss of
   • human life, by leading the population and trusted employees to believe that
   • the trade unionists threatened the safety of the inhabitants of San Antonio
   • because they were communists. Secondly, in order to avoid a confrontation, the
   • workers did not hold the assembly that they had called but hid in the local
   • cemetery to hold their general assembly. The workers subsequently lodged
   • appeals with the courts against their unlawful dismissals ordered by the
   • Mayor. The Labour Court ordered the reinstatement of the dismissed workers ten
   • months ago, but the workers concerned have still not been reinstated.
   • Moreover, under pressure by the Mayor, a new trade union of trusted employees
   • was set up, with none other than the chief of police as its secretary general.
   • However, according to the Ministry of Labour, it is not permitted for members
   • of the police to set up a trade union. This is why the CUSG wonders how the
   • chief of police of this town could be allowed to become secretary general of a
   • trade union. The most recent case this year is that of the Union of Telephone
   • Workers (GUATEL). In addition to the clear intention of the employer to divide
   • the organisation by setting up a parallel trade union, the above-mentioned
   • trade union - according to the CUSG - was not granted registration, although
   • it had met all the conditions required by the General Labour Directorate.
4. 280. In another case dating back to 1987, workers employed in the LUNAFIL
   • factory had no other alternative but to hold a strike. Since September 1987,
   • they had not been given any assistance by the Ministry of Labour in the
   • enforcement of the law, thus giving the enterprise a free hand. The management
   • sold the factory and the new owners succeeded in having the factory forcibly
   • evacuated. The complainant confederation encloses a press cutting from the
   • Campo Pagado newspaper, dated 27 May 1988, containing further details on this
   • allegation. In the article, the workers' trade union of the LUNAFIL SA factory
   • condemns the actions of 500 riot police who entered the factory at 6 a.m. on
5. 26 May in order to evacuate the 39 workers who were peacefully defending their
   • jobs and freedom of association. The police undertook this evacuation on the
   • pretext of executing a court order, but no such order was ever displayed by
   • the police. During the action, persons from nearby areas gathered at the
   • factory; the outcome was utter confusion, resulting from acts of violence
   • committed by the security forces: police fired shots, and a member of the
   • trade union's executive, Julio Coj, was injured; two workers from a nearby
   • factory were detained by the police and later released. According to the press
   • cutting, the trade union considers that the Government applied such methods in
   • an attempt to repress and silence the workers, since the state security forces
   • only acted to enforce court orders favourable to the employers and failed to
   • intervene when such orders were favourable to the workers.
6. 281. The CUSG explains further that the Unified Trade Union Popular Action
   • Group (Unidad de Acción Sindical y Popular), which is the highest form of
   • expression of the Guatemalan workers, signed agreements with the Government on
7. 8 March 1988 concerning economic, agrarian and social policy, human rights,
   • administrative corruption and energy policy. As regards social policy, the
   • agreement provided for a wage increase of at least 50 quetzales per month for
   • workers in the private sector, to be implemented within 45 days. However,
   • according to the complainant, 90 days later the increase had still not been
   • granted, in violation of the agreements of 8 March, and disregarding the
   • economic needs of the workers and their families. As regards the grant of
   • legal personality to the trade union, the agreements also provided that all of
   • the trade unions be registered immediately with the General Labour
   • Directorate, allowing a period of 30 days to examine the documents and
   • complete the formalities for definitive registration. Again, 90 days have
   • passed without the registrations having been completed.
8. 282. As regards the so-called "solidarism" movement, the CUSG explains that
   • this is an employers' anti-trade union movement based in Costa Rica which is
   • growing by leaps and bounds, as it has what workers lack, i.e. money. In
   • addition, workers are regularly sent to Costa Rica to be indoctrinated. The
   • complainant gives the example of the banana plantations of Izabal, in which
   • the trade union is being undermined by "solidarists" who mislead the workers
   • with a view to eliminating the trade union organisation.
   • B. The Government's reply
9. 283. In its reply dated 7 September 1988, the Government communicates
   • detailed observations and information on each of the allegations of the
   • complainant confederation.
10. 284. As regards the allegation of intervention by the Ministry of Labour and
    • Social Security in the registration of trade unions, statistical figures of
    • the Ministry show that the complainant's allegations are incorrect. At the
    • beginning of the current democratic process, 456 trade unions were registered.
    • From 1979 to 1985, the era of authoritarian governments, only 39 trade unions
    • were registered, that is, an average of 5.5 per year; 1983 being a year in
    • which not a single trade union was registered. In the first two years alone of
    • the present Government's administration, 62 trade unions were registered, and
11. 32 more were registered in the first six months of 1988. According to the
    • Government, the amount of time it takes to complete registration formalities
    • has been considerably reduced, since in 1984, 121 days were necessary, the
    • figure dropping to 24 in 1986, seven in 1987, and six in the first six months
    • of this year.
12. 285. The Government admits that the provisions of the Labour Code currently
    • in force, namely, sections 212, 216, 218, 219 and 233, do not facilitate the
    • procedure for registering trade unions, and announces that the Ministry of
    • Labour and Social Security has submitted a draft amendment of the legal
    • framework, which will probably be examined in the near future by the
    • legislative body. This amendment should considerably simplify the registration
    • of trade unions. The Government therefore refutes the allegations of the
    • complainant confederation and affirms that it does not violate freedom of
    • association or make the law inoperative, but that, on the contrary, it is
    • making every effort to facilitate the procedure by amending the Labour Code.
13. 286. As regards the allegation of arbitrary acts committed by the Mayor of
    • the town of San Antonio Suchitepéquez, the Government observes that the
    • complainant itself has stated that the case has been brought before the labour
    • and social welfare courts. The Government stresses that in Guatemala, in
    • accordance with article 141 of the Constitution, no subordination exists
    • between the legislative, executive and judiciary bodies. One of the
    • cornerstones of the current democratic process is the independence of these
    • branches. Therefore, the executive, in this case the Ministry of Labour and
    • Social Security, has nothing to do with proceedings instituted before the
    • labour courts. Notwithstanding the above, assuming that the allegation of the
    • CUSG is true, the Labour Code currently in force sets out penalties for
    • disobedience in sections 414 and 440, and thus workers are entitled to
    • institute penal proceedings in this case. The Government concludes that the
    • Ministry of Labour has no competence in this respect.
14. 287. As regards the Union of Telephone Workers (GUATEL), the Government
    • indicates that the General Labour Directorate, which is the administrative
    • body responsible for registering trade unions, has not received any
    • application for the grant of legal personality and the approval of the by-laws
    • of any trade union of telephone operators called GUATEL. Therefore the
    • allegation of the CUSG is not correct, since the trade union concerned does
    • not exist. According to the Government, there is only one file on
    • telecommunications workers in the General Labour Directorate. The Union of
    • Workers of the Tropical Radio Telegraph Company was founded on 28 April 1957,
    • and its by-laws were approved and legal personality was granted at that time.
15. In 1966 this trade union changed its name to Union of Workers of International
    • Telecommunications of Guatemala and in 1983 this was replaced by its current
    • name, the Workers' Trade Union of the Guatemala Telecommunications Company. In
    • other words, in the telecommunications enterprise there is and only has been
    • one trade union.
16. 288. As regards the workers employed in the LUNAFIL factory, the Government
    • states that from the outset the current administration of the Ministry of
    • Labour and Social Security has taken a special interest in the case of the
    • workers in this factory. The case had been brought before the labour courts
    • and the Ministry was therefore not able to intervene. The only action open to
    • it was that of mediation between employers and workers with a view to reaching
    • a settlement which would be acceptable to both parties. The file on this case
    • indicates that this was in fact done. The trade union leaders requested
    • mediation by the Minister of Labour and, on 23 July 1988, in the presence of
    • the Minister of Labour of Costa Rica, the Minister of Labour of Guatemala
    • participated in the reopening of the factory and the definitive settlement of
    • the dispute. In this connection, the Government encloses a copy of the
    • mediation record, signed in the presence of the Minister of Special Affairs by
    • several leaders of the workers' trade union of the LUNAFIL SA enterprise and
    • by several respresentatives of the employer, in which the parties express
    • their desire to reach an agreement in order to achieve a definitive settlement
    • of the dispute affecting the enterprise since 9 June 1987. Following
    • discussions, the workers consented to leave the premises of the enterprise on
17. 22 July. It was decided that measures should be undertaken to enable the
    • enterprise to resume operations as from 23 August. The enterprise agreed to
    • reinstate 24 of its former employees, whose names were put forward by the
    • executive of the trade union. It was also decided that the parties committed
    • themselves to discussing a draft collective agreement and to renounce all
    • judicial action.
18. 289. As regards the agreement signed between the Government and the Unified
    • Trade Union Popular Action Group and, in particular, the issue of wage
    • increases, the Government explains that the executive has complied with its
    • obligations by submitting a bill to the legislative body. However, the
    • Government recalls that in view of the separation of powers to which it has
    • already referred, the executive cannot compel the legislative body to approve
    • a bill.
19. 290. As regards "solidarism", the Government states that the Ministry of
    • Labour and Social Welfare has decided not to register associations of workers
    • formed with the aim of setting up a "solidarist" group. It explains, however,
    • that constitutional provisions (article 34) provide for the right of free
    • association so that the exercise of this right cannot be denied. The Ministry
    • of Labour considers that those wishing to exercise this right in order to set
    • up a "solidarist" association must apply to the Ministry of the Interior,
    • which, under the law, is alone competent for such matters. Notwithstanding the
    • above, the Government adds that the Ministry of Labour is of the opinion that
    • it is for the workers themselves to denounce the objectives of "solidarism"
    • and its contradictions with the objectives of trade unions. It is not the
    • Ministry of Labour which is competent in this respect. The allegations of the
    • complainant confederation on this point are therefore unfounded.
20. 291. The Minister of Labour concludes by explaining that since he took
    • office on 17 October 1987, 59 trade unions have been registered and nine other
    • applications are being processed. Enclosed with the Government's letter are
    • statistical reports of the General Labour Directorate concerning registration
    • of trade unions, which confirm the information supplied by the Government.

C. The Committee's conclusions

1. 292. In the first place, the Committee notes with interest that, unlike past
   • practice, the Government has collaborated in the procedure surrounding this
   • case by sending in September 1988 detailed replies to the allegations
   • submitted in June 1988 by the complainant confederation. This is particularly
   • gratifying since for many years the Committee has had occasion to regret the
   • Government's lack of co-operation in the procedure and since it was obliged,
   • many times, to examine the substance of a great many complaints without having
   • any information or observations from the Government at its disposal.
2. 293. Secondly, on the substance of the matter, the Committee observes that
   • the Government's replies to the various allegations submitted in this case
   • show that on certain points it has endeavoured, at least in part, to give the
   • CUSG satisfaction. However, the versions given by the Government and by the
   • complainant confederation are often contradictory and the action taken by the
   • Government to redress the violations of freedom of association does not always
   • appear to have been adequate.
3. 294. As far as the CUSG is concerned, the public authorities are arbitrarily
   • violating human rights and freedom of association by failing to register trade
   • unions, by allowing the dismissal of works committee members seeking to set up
   • new trade unions, by failing to support workers in their attempts to see that
   • agreements reached are properly implemented and by encouraging the development
   • of "solidarism".
4. 295. As regards the first aspect of this complaint concerning the delays in
   • registration of trade unions by the Ministry of Labour and Social Security,
   • the Government states for its part that, although the successive authoritarian
   • governments in power between 1979 and 1985 were very slow in registering trade
   • unions (as only 39 unions were registered during the period) , since the
   • country's return to democracy in 1985, 94 unions have been registered, 59 of
   • them since October 1987. The Government also claims that the amount of time it
   • takes to complete registration formalities has been considerably reduced,
   • although it admits that the provisions of the Labour Code currently in force
   • do not facilitate the procedure, and states that legislative amendments have
   • been drafted to solve the problem.
5. 296. The Committee trusts that, in conformity with the Government's
   • undertakings in its reply, the current review of the legislation on the
   • subject will enable the adoption of provisions that are in accordance with
   • Articles 2, 3 and 7 of the Freedom of Association and Protection of the Right
   • to Organise Convention (No. 87), which Guatemala has ratified. In particular,
   • the Committee stresses the importance it attaches to the principle that the
   • acquisition of a legal personality by workers' organisations must not be made
   • subject to conditions of such a character as to impair the guarantees provided
   • for in the Convention, and specifically the guarantee that workers will not be
   • hindered by the public authorities in the exercise of their right to establish
   • organisations of their own choosing without previous authorisation.
6. 297. As to the dismissal of works committee members who seek to set up trade
   • unions, the Committee notes that the CUSG's allegations regarding the attitude
   • of the municipality of San Antonio Suchitepéquez are not very clear, but that
   • it would appear from the complaint that workers seeking to establish a union
   • of municipal employees have been dismissed and have lodged an appeal with the
   • courts on the grounds that their dismissal was illegal. The Government does
   • not contest this allegation. Indeed, it confirms that the case has been
   • brought before the labour courts, but argues that because of the separation of
   • the executive and the judiciary it is not competent in the matter.
7. 298. Whenever it has examined cases of anti-union discrimination against
   • workers seeking to establish a trade union, the Committee has always recalled
   • that one of the fundamental principles of freedom of association is that
   • workers should enjoy adequate protection against all acts of anti-union
   • discrimination likely to infringe upon freedom of association in their
   • employment, such as dismissal, transfer, demotion or other prejudicial
   • measures, and that this protection is particularly desirable in the case of
   • the founders of trade unions because, in order to perform their trade union
   • duties in full independence, they should have a guarantee that they will not
   • be prejudiced on account of the mandate that they are seeking or already hold
   • from their trade unions. The Committee considers that the guarantee of such
   • protection in the case of the founders of trade unions is necessary to ensure
   • respect for the fundamental principle that workers are entitled to establish
   • organisations of their own choosing without distinction whatsoever. (See 254th
   • Report, Case No. 1396 (Haiti), para. 389.)
8. 299. In this particular case the Committee stresses that, when Guatemala
   • ratified Convention No. 87, the Government freely undertook to guarantee all
   • workers, including municipal employees, the right to establish organisations
   • of their own choosing to promote and defend their occupational, economic and
   • social interests. Consequently, the Committee requests the Government to
   • indicate: (1) whether the employees of the municipality of San Antonio
   • Suchitepéquez who were dismissed for attempting to found a trade union have
   • been reinstated in their jobs, and (2) whether the workers concerned have been
   • able to establish a trade union of their own choosing as they were seeking to
   • do.
9. 300. As regards the allegation that the Government has not supported workers
   • in their attempt to ensure that the agreements reached were properly
   • implemented, and as regards in particular the alleged infringement of the
   • right to strike at the LUNAFIL factory as a result of a labour dispute, the
   • Committee notes with regret that to begin with, according to a press cutting
   • sent by the CUSG which the Government has not contested, 39 workers inside the
   • factory who were peacefully defending their jobs and freedom of association
   • were attacked by members of the riot police who used violence to evacuate the
   • factory, wounding a trade unionist and arresting two others in the process.
10. 301. When it has had to deal with cases of this nature in the past, the
    • Committee has expressed the general view that the use of security forces, in
    • so far as the facts showed that their intervention was limited to the
    • maintenance of public order and did not restrict the legitimate exercise of
    • the right to strike, is not in violation of freedom of association. On the
    • other hand, the Committee has always regarded the use of police for
    • strike-breaking purposes as an infringement of trade union rights. (See 230th
    • Report, Case No. 1187 (Islamic Republic of Iran), para. 674 and 234th Report,
    • Case No. 1227 (India), para. 312.) Moreover, the Committee considers that
    • governments should give strict instructions and initiate effective
    • disciplinary proceedings whenever the breaking up of a meeting of workers by
    • the police causes grievous bodily harm and is of the opinion that the arrest
    • of strikers involves a serious risk of abuse for freedom of association.
11. 302. In addition, the Committee notes with interest that the Government
    • offered to mediate in the dispute at the LUNAFIL factory and that, following
    • an agreement reached through the Minister of Special Affairs, the enterprise
    • agreed to reinstate 24 of its former employees whose names were put forward by
    • the executive of the trade union; the parties also undertook to discuss a
    • draft collective agreement and to renounce all judicial action. In these
    • circumstances, while stressing the importance it attaches to the principles
    • set out in the preceeding paragraph, the Committee considers that this aspect
    • of the case does not call for further examination.
12. 303. As regards the complaint concerning the development of "solidarism",
    • which the complainant confederation claims is supported by the Government, the
    • Committee notes the Government's denial of this charge and its indication that
    • the Ministry of Labour and Social Security has decided not to register
    • associations of workers formed with the aim of setting up a "solidarist"
    • group. The Government explains, however, that the right of association is
    • guaranteed by the Constitution and that those wishing to set up such
    • associations must apply to the Ministry of the Interior.
13. 304. The Committee considers it appropriate to point out that on the subject
    • of "solidarism", it already stressed in 1985, when considering a Bill to
    • consolidate "solidarity" associations (of the "solidarist" movement) which the
    • complainants claimed were supported by the employers and parallel to the trade
    • union movement, that the provisions governing "solidarity" associations should
    • respect the activities of trade unions guaranteed by Convention No. 98. (See
14. 240th Report, Case No. 1304 (Costa Rica), para. 94.)
15. 305. In the present case the Committee draws the Government's attention to
    • Article 2 of the Right to Organise and Collective Bargaining Convention (No.
16. 98), ratified by Guatemala, which provides that workers' organisations must
    • enjoy adequate protection against any acts of interference by employers or
    • employers' organisations and that measures designed to promote the
    • establishment of workers' organisations under the domination of employers or
    • employers' organisations or to support workers' organisations by financial and
    • other means, with the object of placing such organisations under the control
    • of employers or employers' organisations, are specifically assimilated to such
    • acts of interference. The Workers' Representatives Convention, 1971 (No. 135),
    • and the Collective Bargaining Convention, 1981 (No. 154), likewise contain
    • explicit provisions guaranteeing that, where there exist in the same
    • undertaking both trade union representatives and elected representatives,
    • appropriate measures are to be taken to ensure that the existence of elected
    • representatives in an enterprise is not used to undermine the position of the
    • trade unions concerned.

The Committee's recommendations

1. 306. In the light of its foregoing conclusions, the Committee invites the
   • Governing Body to approve the following recommendations:
     • a) The Committee notes with interest that, unlike past practice, the
   • Government has co-operated in the procedure by sending observations and
   • information rapidly in reply to the allegations submitted by the complainant
   • in June 1988.
     • b) With regard to the delays in registration of trade unions which is
   • criticised by the complainant confederation, the Committee notes that,
   • according to the Government, a considerable number of trade unions have in
   • fact been registered since the country's return to democracy and that the
   • delays in registration have been reduced. The Committee nevertheless invites
   • the Government to follow through with its stated intention to amend the law so
   • as to remove the barriers to the acquisition of legal personality by trade
   • unions.
     • c) The Committee draws the attention of the Committee of Experts on the
   • Application of Conventions and Recommendations to this aspect of the case as
   • it relates to the application of Convention No. 87.
     • d) As regards the anti-union discrimination against workers seeking to set
   • up a trade union of municipal employees, the Committee recalls that, in
   • accordance with Article 2 of Convention No. 87 ratified by Guatemala, all
   • workers, including municipal workers, should have the right to establish the
   • organisations of their own choosing in defence of their occupational
   • interests; the Committee therefore requests the Government to indicate whether
   • the workers of the municipality of San Antonio Suchitepéquez who were
   • dismissed for attempting to found a trade union have been reinstated in their
   • jobs following their appeal against the dismissals, and whether the union of
   • workers of the municipality has been granted legal personality.
     • e) As regards the dispute at the LUNAFIL factory which resulted in the
   • wounding of a striking worker and the arrest of two other strikers, the
   • Committee recalls the importance it attaches to the principle that peaceful
   • strike action is one of the essential means that must be available to workers
   • to defend their economic and social interests.
     • f) Consequently, with respect to the bodily harm inflicted by the riot
   • police who were evacuating the factory where, according to the complainant, 39
   • strikers were peacefully defending their jobs and freedom of association, the
   • Committee recalls that governments should give strict instructions and
   • initiate effective disciplinary proceedings whenever the breaking up of a
   • meeting of workers by the police causes grievous bodily harm.
     • g) As regards the arrest of the two strikers during this labour dispute,
   • the Committee stresses that the arrest of strikers involves a serious risk of
   • abuse for freedom of association.
     • h) The Committee notes, however, with interest that the labour dispute at
   • the LUNAFIL factory has been settled thanks to the mediation of the public
   • authorities and, while emphasising the importance of the principles set out in
   • the foregoing subparagraphs, considers that this aspect of the case does not
   • call for further examination.
     • i) As regards the allegations relating to "solidarism", the Committee
   • recalls the importance it attaches, in conformity with Article 2 of Convention
2. No. 98, to protection being ensured against any acts of interference by
   • employers designed to promote the establishment of workers' organisations
   • under the domination of an employer.