Effect given to the recommendations of the committee and the Governing Body - Report No 326, November 2001

Case No 1970 (Guatemala) - Complaint date: 16-JUN-98 - Closed

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Effect given to the recommendations of the Committee and the Governing Body

Effect given to the recommendations of the Committee and the Governing Body

82. When the Committee examined this case at its November 2000 meeting, it requested the Government to keep it informed with regard to a series of issues relating to violence against trade union members, anti-union dismissals, the overlong duration of legal proceedings on cases of anti-union discrimination, non-compliance with legal decisions with regard to the reinstatement of trade union members who had been dismissed and the refusal to enter into collective bargaining at certain enterprises.
83. The Committee also invited the Government to accept a direct contacts mission within the framework of the follow-up to the recommendations in this case [see 323rd Report, para. 284]. The Government accepted the mission in its communication of 20 February 2001 and stated that it hoped that the direct contacts mission would also investigate the questions raised by the Committee of Experts relating to the application of Conventions Nos. 87 and 98.
84. The Committee notes the submission of the report on the direct contacts mission submitted by Professor Adrián Goldin, representative of the Director-General, which discusses the previous recommendations of the Committee on this case (November 2000) and the further observations of the Government (see Part IV of the direct contacts mission report).
Report on the direct contacts mission to Guatemala (23-27 April 2001)
I. Introduction
At its meeting in November 2000, the Committee on Freedom of Association proposed to the Government of Guatemala that it accept a direct contacts mission as part of the follow-up to its recommendations in Case. No. 1970 [see the Committee’s 323rd Report, para. 284].
In a communication dated 20 February 2001, the Government of Guatemala accepted the Committee’s proposal for a direct contacts mission. The Minister of Labour requested that the mission also address the questions raised by the Committee of Experts on the Application of Conventions and Recommendations with regard to 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), bearing in mind also the fact that these questions had been discussed several times by the Conference Committee on the Application of Standards, most recently in 1999 and 2000.
The direct contacts mission took place in Guatemala City from 23 to 27 April 2001 and was led by Professor Adrián O. Goldin, Professor of Labour Law at the San Andrés University and the University of Buenos Aires. He was accompanied by Mr. Alberto Odero, Coordinator of the Freedom of Association Branch of the ILO’s International Labour Standards Department, and Mr. Christrian Ramos Veloz, a standards specialist from the San José (Costa Rica) Multidisciplinary Advisory Team.
Taking into consideration the questions addressed in Case No. 1970 and the reports of the Committee of Experts and of the Conference Committee on the Application of Standards, the mission decided to focus its activities on the following areas: (1) reminding the authorities and private individuals interviewed of the grave concerns expressed by the supervisory bodies at the acts of violence (murders, assaults and death threats) experienced by a number of trade union officials and members, and identifying the measures adopted or envisaged by the authorities with a view to rectifying that situation, including measures intended to protect trade unionists who have been threatened; (2) obtaining as much information as possible on the questions raised by the Committee on Freedom of Association with regard to Case No. 1970 and the measures taken to give effect to its recommendations; these questions refer in essence to acts of violence against trade unionists, anti?union dismissals, excessive delays in judicial proceedings in connection with cases of antiunion discrimination, failure to comply with court orders to reinstate dismissed trade unionists, and the refusal by certain enterprises to bargain collectively; (3) examining possible solutions to these problems with the authorities and the social partners, with a view to facilitating agreements in this area; and (4) emphasizing the importance of bringing legislation fully into conformity with Conventions Nos. 87 and 98.
The mission held interviews with the Vice-President of the Republic, the Minister of Labour and Social Security, and representatives of Congress, the Supreme Court and organizations of employers and workers (see the list of persons interviewed reproduced in the annex).
The mission wishes to emphasize that it received every assistance from the Government. It enjoyed the full cooperation of the Government and authorities, the central and primary trade union organizations and employers’ associations. For this it wishes to express its profound gratitude.
II. Questions raised by the Committee on Freedom of Association as part of the follow-up to its recommendations in Case No. 1970
At its meeting in November 2000, the Committee made the following recommendations [see the Committee’s 323rd Report, para. 284]:
(a) Deploring the extreme gravity of the allegations in this case and noting with deep concern the large number of acts of violence against trade union officials and members that have been alleged, and the fact that, since its last examination of the case, two trade union officials have been murdered – including one against whom a death threat had already been alleged in the context of this case – and another two have received death threats, the Committee wishes to draw the Government’s attention to the fact that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety, are fully respected and guaranteed, and that in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing repetition of such acts, and requests the Government to ensure that these principles are fully respected.
Allegations concerning acts of violence
Murders
(b) The Committee: (i) requests the Government to communicate without delay the outcome of the investigation conducted by the Commission for Historical Clarification into the murder of the trade unionist Mr. Luis A. Bravo; and (ii) hopes that the judicial proceedings relating to the murder of the trade unionist Mr. Pablo A. Guerra, which began in 1995, will be completed soon, and requests the Government to communicate the final outcome of those proceedings.
(c) The Committee profoundly regrets the murder of the General Secretary of the Trade Union of Pilots in Fuel and Air Transport, Mr. Oswaldo Monzón Lima, and urges the Government to take immediate measures to initiate a judicial inquiry with a view to clarifying the facts, determining responsibility, and punishing those responsible. The Committee requests the Government to keep it informed in this regard.
(d) The Committee: (1) requests the Government to keep it informed of the outcome of the judicial proceedings currently under way in relation to the murder of Mr. Robinson Manolo Morales Canales; (2) hopes that the judicial authorities will take steps to expedite the judicial proceedings in connection with the murder of Mr. Hugo Rolando Duarte Cordón, and requests the Government to keep it informed in this regard; and (3) requests the Government to initiate an immediate judicial inquiry into the murder of Mr. José Alfredo Chaón Ramirez and keep it informed in this regard.
(e) The Committee requests the Government to keep it informed of the outcome of the investigation into the murder on 22 June 1999 of Mr. Baldomero de Jesús Ramírez, General Secretary of the Trade Union of Workers of the Municipality of Santa Lucía, Cotzumalguapa, Department of Escuintla.
(f) With regard to the alleged murder of the trade unionists Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solórzano and Ismael Mérida, the Committee requests the Government to ensure that investigations begin soon and to keep it informed in this regard.
Death threats
(g) The Committee urges the Government to keep it informed of the outcome of the judicial investigation into alleged death threats against the official of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá Farm, Mr. Juan Guitérrez Garcia, and against other members of the trade union in question, for demanding payment of wages, and to provide protection to the trade union officials and members who have been threatened.
(h) With regard to the alleged death threats against the following trade union officials and members: (1) Rolando Quinteros and Mario Garza, of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport; (2) José Angel Urzúa, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolio Torres, Feliciano Izep Zuruy and José Domingo Guzmán; (3) the trade union officials of the Trade Union of the Santa Fe and La Palmera Farms; and (4) José Pinzón, General Secretary of the CGTG, and Rigoberto Dueñas, Deputy General Secretary of the CGTG, the Committee requests the Government to take steps to begin immediate judicial investigations and to provide protection to all the individuals who have been threatened. The Committee requests the Government to keep it informed of the final outcome of these investigations.
Raids on homes and attempted abductions
(i) The Committee requests the Government to take steps to begin an immediate investigation into the allegation concerning the raid on the home of the trade union official Mr. Francisco Ajtzoc Ajcac by the employer (El Arco Farm), and, if it is found to be true, to take steps to punish those responsible and prevent any recurrence in future. The Committee requests the Government to keep it informed in this regard.
Physical assaults
(j) The Committee requests the Government to take steps to begin an immediate investigation into the allegation concerning harassment by the Hotel Camino Real enterprise against trade union officials and the physical assault (stabbing) of the trade union's General Secretary and, if the allegations are to be found true, to take steps to punish those responsible and prevent any recurrence in the future. The Committee requests the Government to keep it informed in this regard.
Allegations concerning acts of anti-union discrimination upon which the judicial authority has not yet rendered final judgements
(k) As concerns the questions relating to the dismissal of three trade union officials on 7 August 1994 at the El Arco Farm; the dismissals on 22 May 1995 and in October 1996 of the seven founding members of the Trade Organization of the Santa Lucía La Mayor Farm; the dismissal on 28 November 1996 of 25 members of the Trade Union of the La Argentina Farm; the dismissal on 2 April 1997 of ten workers at the El Tesoro Farm for presenting a list of demands; and the dismissal on 28 October 1993 of 40 unionized workers, including all the members of the Executive Committee of the Trade Union of Santa Anita Farm, the Committee, deeply concerned at the excessive duration of the proceedings, which constitutes a denial of justice, requests the Government to ensure that the competent judicial authorities take a rapid decision to permit the safeguard of the interests of the workers concerned, if necessary by their provisional reinstatement in their posts until the courts have rendered a final decision. The Committee requests the Government to keep it informed in this respect.
Other questions
(l) With regard to the alleged impossibility of negotiating a collective agreement at the San Carlos Miramar Farm, the Committee, emphasizing that it is within its competence to determine whether the legislation and its application are in conformity with the principles of freedom of association, requests the Government to keep it informed of any decision taken by the judicial authorities with regard to this allegation.
(m) With regard to the dismissal of 15 workers at the San Rafael Panam and Ofelia Farms for presenting a list of demands and the failure to comply with the reinstatement order, the Committee requests the Government to endeavour to give effect to the judicial order to reinstate the workers dismissed five years ago, and to keep it informed in this regard.
(n) With regard to the dismissals on 23 August 1995 and 14 March 1996 of two trade unionists at the La Patria y Anexo Farm, the Committee deeply deplores the failure to comply with the judicial reinstatement order, and urges the Government to endeavour to enforce the order in question. The Committee requests the Government to keep it informed in this regard.
(o) With regard to the dismissal of trade union officials and workers at the Santa Fe and La Palmera Farms for forming a trade union and presenting a list of demands to the judicial authorities, the Committee hopes that the proceedings now under way will be concluded in the near future, and requests the Government to keep it informed of the outcome of those proceedings.
(p) The Committee invites the Government to accept a direct contacts mission within the framework of the follow-up to the recommendations in this case.
III. Legal questions raised by the Committee of Experts and by the Conference Committee on the Application of Standards
At its two most recent meetings in 1999 and 2000, the Committee of Experts made certain recommendations concerning the application by Guatemala of Conventions Nos. 87 and 98, as follows:
[Convention No. 87]
[In the first place], the Committee notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1970 in which it noted with deep concern the large number of acts of violence against trade union officials and members which have been alleged, including numerous murders and death threats (see the 323rd Report of the Committee on Freedom of Association, paragraph 284(a)). In this respect, the Committee shares the opinion expressed by the Committee on Freedom of Association that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety are fully respected and guaranteed [see op. cit.].
The Committee recalls that for many years it has been criticizing the following provisions of the legislation:
– the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);
– the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that at least three members of the executive committee are able to read and write (sections 220(d) and 223(b));
– the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));
– the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;
– the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249);
– the possibility of calling on the national police to ensure continuity of work in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);
– the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);
– the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential in the strict sense of the term, in particular public transport and services related to the supply of fuel, and the prohibition of inter-union sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).
The Committee notes with interest that the President of the Republic has transmitted for adoption to Congress a Bill to amend or repeal some of the above provisions […]
The Committee expresses once again the firm hope that in the very near future legislation will be adopted which has been the subject of tripartite consultations and which includes amendments to all the provisions criticized. The Committee requests the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office's technical assistance is at its disposal.
[Convention No. 98]
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 commission 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 commission 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.
In June 2000, the Conference Committee on the Application of Standards adopted the following conclusions regarding the application by Guatemala of Convention No. 87:
The Committee took note of the written and oral information supplied by the Minister of Labour and of the discussion that took place in the Committee. The Committee recalled that the problem of non-compliance of national legislation and practice with the provisions of the Convention had been examined by the Committee of Experts and discussed in this Committee over many years, including the previous year. The Committee took note of the development announced by the Government representative, which had just occurred, that draft legislation to amend the Labour Code, the trade union legislation, the regulation on the right to strike and the Penal Code, in order to bring them into conformity with the requirements of the Convention, had been sent by the President of the Republic to Congress for adoption on 17 May 2000. The Committee indicated that it would be for the Committee of Experts to examine the compatibility of these amendments with the provisions of the Convention and trusted that these amendments would finally allow the full application of this fundamental Convention, ratified in 1952. The Committee was still concerned by the lack of concrete progress in practice. The Committee expressed its firm hope that the Government would send a detailed report to the Committee of Experts and a copy of the amendments adopted so as to allow it to make an assessment of real progress in law as well as in practice by the following year. It recalled the importance it attached to tripartite consultations with regard to the application of the principles of freedom of association.
IV. Written information submitted by the Government and other authorities in Case No. 1970
In a lengthy communication dated 26 January 2001, the Government states that implementation of the recommendations of the Committee on Freedom of Association is a priority. The Government indicates that it has communicated with the courts, the Office of the Attorney-General and the Presidential Human Rights Commission (COPREDEH) in connection with these recommendations, and explains that as a result of the 34 years of armed conflict within the country, which ended only recently, the state authorities have suffered a degree of disorganization and the necessary measures are still not being taken. One task since peace was achieved in 1996 has been to improve the legal and regulatory framework and to regenerate the justice system. This is not an excuse but rather an explanation for the institutional deficiencies that still exist, despite the fact that all the organizations are working towards the goals that have been defined and progress is being achieved in a process which should be viewed from the long-term perspective. As regards the constitutional principle of separation of powers, the Government has sought to ensure rapid processing of labour and criminal cases brought before the Committee with a view to resolving them swiftly (the Government supplies copies of the relevant communications).
Official visits have been made at the highest level with a view to speeding up efforts to deal with labour disputes and ensuring that criminal cases are investigated in accordance with the law. Ministry of Labour representatives have visited district-level public prosecution offices and courts in Zacapa, Escuintla, Santa Lucía , Cotzumalguapa and Guatemala City, in order to carry out on-site inspections, and fruitful discussions with judges and other officials dealing with cases have led to undertakings to introduce greater speed and flexibility. In that respect, the Ministry is fully aware of the efforts that are required to protect trade union organizations and workers, in accordance with the Political Constitution and the Labour Code and within the framework of law.
The Ministry of Labour has on many occasions asked the Office of the Attorney-General, through its highest authority the Prosecutor-General and Head of the Office, to collaborate as closely as possible in resolving criminal matters, which have had an impact on the world of work throughout the country. Officials of the Attorney-General’s Office have responded to these requests, although not always as quickly and diligently as might have been wished. For these reasons, there are still some cases where there is insufficient information, which it is hoped will be obtained in due course. Guatemala reiterates its firm commitment to establishing the truth.
As regards the allegations regarding violence or threats against trade unionists, the Government states that complains have not been made in all cases, and attempts have therefore been made to find the trade unionists concerned or their organizations with a view to ascertaining whether or not the individuals in question are still at risk of their lives, but no replies have been received. The Government invites the ILO to solicit information on this matter from the complainants.
Subsequently, the report sets out the considerable amount of information provided by the Government on specific questions raised by the Committee, as well as information given to the mission by the Supreme Court of Justice, the Office of the Prosecutor-General and the Human Rights Procurator.
Recommendation (b) of the Committee
With regard to the death of Pablo Antonio Guerra Pérez in 1995, the judicial authorities acquitted the defendant who had been charged with culpable homicide (the defence counsel maintained that the death had been an accident). An appeal could have been lodged within ten days of the ruling but this was not done; the ruling is therefore final and the case is considered closed.
As regards the killing of Luis Armando Bravo Pérez in October 1996, death was due to wounding with a firearm. The case was classed “unsolved” because the person responsible for the crime could not be found (Mr. Bravo’s companions at the time of the incident were unable to identify the culprits because it occurred at night and visibility was poor). The investigation remains open.
Recommendation (c) of the Committee
Oswaldo Monzón Lima was found dead on 22 June 2000. The case is being investigated by the Office of the Attorney-General. The Prosecutor-General has been asked to appoint a special investigator. There are three principal suspects in the case.
Recommendation (d) of the Committee
As regards the murder of Robinson Manolo Morales Canales (12 January 1999), the two culprits were sentenced by the courts to 20 and 25 years’ imprisonment respectively. The sentence is final.
With regard to the killing of Hugo Rolando Duarte Cordón, two persons have been charged following investigations by the Office of the Attorney-General.
As regards the death of José Alfredo Chacón Ramirez (in January 1999), information is being gathered in connection with a complaint.
Recommendation (e) of the Committee
With regard to the death of Baldomero de Jesús Ramírez in 2000, the Office of the Attorney-General does not have sufficient evidence to establish the responsibility of any individual. The daughter of Mr. Ramírez has rejected the notion that the local mayor is the culprit. The investigation remains open and is focusing on two possibilities: that the mayor was responsible, or that the deceased was killed by his wife.
Recommendation (f) of the Committee
As regards the reported death of Cesáreo Chanchavac on 30 October 1992, there has been no investigation report by the National Police.
Homicide proceedings are under way in connection with the death of Carlos Lij Cuc (in July 1994) as a result of stabbing. Two persons have been arrested and charged in connection with the killing.
As regards the killing of José Feliciano Vivas in January 1996, the duty judge initiated the appropriate procedures on the following day.
With regard to the reported killing of Solórzano Guardado (May 1996), the justice of the peace issued a certificate of suspicious death.
As regards the killing of Ismael Mérida (July 1996), the National Police has given information regarding the personal examination carried out by the justice of the peace, without any positive results.
Recommendation (g) of the Committee
As regards the death threats made against Juan Gutiérraz García, the Minister of Labour lodged a petition against the Atitán S.A. farming enterprise, and a complaint was filed on 7 August 1998. The Human Rights Procurator has been asked to ensure that this worker is given protection, the threats cease and those responsible are punished.
Recommendation (h) of the Committee
The death threats against Rolando Quinteros and Pablo Garza are being investigated by the Office of the Attorney-General. The Human Rights Procurator has been asked to provide them with protection.
As regards the death threats against José Angel Arzúa, no complaint has been made. According to his trade union, he has retired and no longer receives death threats. The mayor responsible for anti-union acts and acts of violence was removed from office.
With regard to the death threats against Elmer Salguero García, the trade union concerned states that no complaint has been made and that he no longer receives such threats. He is now a trader and no longer works in the municipality of Zacapa. The mayor responsible for violent and anti-union actions was removed from office.
As regards the death threats against Feliciano Izep Zuruy, there has been no complaint. However, there was a commercial dispute between individuals in connection with work spaces. This was also the case with José Domingo Guzmán.
As regards the death threats against Everildo Revolario Torres, Hermicio Franco Hernández, José Pinzón and Rigoberto Dueñas, the Government has asked the Human Rights Procurator to provide them with protection.
Recommendation (i) of the Committee
As regards the raid on the home of the trade unionist Francisco Ajtzoc Ajcac, the case is before the Second Labour and Family Court of Retalhuleu Department.
Recommendation (j) of the Committee
As regards the harassment and assault against (unnamed) officials of the trade union of workers of the Camino Real Hotel, the union ceased to be operative after its officers resigned, and another trade union now exists in its place.
Recommendations (k) to (o) of the Committee
With regard to the cases concerning allegations of anti-union discrimination, the Ministry of Labour and Social Security summarizes the administrative and judicial proceedings as follows.
As regards the administrative aspects of the proceedings, the Ministry is speeding up the cases which are being brought individually or collectively by the workers, in the sense that once a complaint has been made, a summons is issued immediately so that the party against whom the complaint is made appears before the General Labour Inspectorate within three days. Previously, if the party failed to appear at that hearing, up to two further summonses would be issued. With the change in Government, the current Ministry has ruled that, when the employer is summonsed, the summons must indicate the reason for the summons, and the address must be carefully checked to ensure that there can be no excuse for failure to appear. If the employer fails to appear, punitive proceedings begin automatically in the labour courts; these involve an application by the Labour Inspectorate stating the particular violation of labour law by the employer. This is a fairly long procedure, leading ultimately to a conviction which entails a small economic penalty against the employer and thus has no real effect.
If on the other hand the party against which the complaint has been made appears before the Labour Inspectorate and the dispute is resolved, the case is closed. If the dispute is not resolved, the worker must lodge a judicial application and for that purpose the Ministry has created the Office of the Procurator for the Defence of the Worker, which makes the necessary representations free of charge in connection with the claim. The Office was set up with the aim of assisting the many workers without the means to pay a lawyer in their attempts to enforce their labour rights before the courts.
A lower court ruling will be favourable or unfavourable to one of the parties. Any party dissatisfied with a ruling may appeal to ensure that its case is examined by a higher (appeals) court. This is a procedure by which one or both parties request the higher court to review a lower court ruling unfavourable to it, and asks the higher court to set aside or modify the original ruling.
The higher court can be subject to an application for protection (“amparo”) which is enshrined in article 265 of the country’s Political Constitution. According to this provision, amparo proceedings can be instituted with a view to protecting persons against a threatened violation of their rights, or in order to restore rights that have already been violated. No sphere is exempt from amparo proceedings, which are applicable whenever any acts, decisions, provisions or laws imply a threat to, or a restriction or violation of, constitutional and legal rights.
Such applications are heard by a special amparo tribunal within the Supreme Court of Justice. In practice, the legal requirement, that a violation of rights be noted before any ordinary procedures or remedies (judicial or administrative) be applied, has virtually never been observed. Indeed, amparo applications have been incorrectly lodged before the Constitutional Court, which is the court of appeal for all amparo cases and is competent to examine direct amparo applications against the Supreme Court, most of which seek a “review” of decisions handed down by the ordinary courts.
There are thus four levels of judicial authority, which means that the procedure for dealing with labour disputes is slow and workers often abandon their claims in despair, frequently preferring to renounce the compensation to which they are entitled or to accept far less than they could legally claim. This situation is illustrated by the cases of anti-union discrimination referred to by the Committee.
Dismissals at the El Arco Farm. The authorities have supplied information on a collective dispute in 1997, although the complaint concerns the dismissal of three trade union leaders in August 1994. It would be helpful if the Government would send new information.
Dismissals at Santa Lucía la Mayor Farm. The judicial authorities ordered the reinstatement of the workers and the order has been put into effect.
Dismissals at La Argentina Farm. The first court order for reinstatement was overruled. The judicial authority ordered that financial compensation be paid to the workers in question.
Dismissals at El Tesoro Farm. The Constitutional Court upheld the previous rulings ordering reinstatement, thereby closing the case.
Dismissals at Santa Anita Farm. On 1 February 2000, the dismissed workers accepted an out?of-court financial settlement with the Farm and abandoned their claim.
Impossibility of negotiating a collective agreement at the San Carlos Miramar Farm. The Government has not provided new information on any court rulings in this matter.
Dismissals at San Rafael Panam Farm. The court lifted the injunctions and provisional remedies (that is, the protection given to the trade unionists) and that decision was upheld on appeal. The proceedings have ended.
Dismissals at Ofelia Farm. The parties did not appear before the court after the plaintiff requested that the direct remedies for dealing with the reinstatement applications be exhausted. The case is still pending.
Dismissals at La Patria Farm in August 1995 and March 1996. Two separate cases are pending. In the first (No. 102-97), a conciliation tribunal was convened but only the workers appeared. They can request a new hearing for both parties but have not done so. In the second case (No. 108-97), the judicial authority has lifted the injunctions and provisional remedies (thus terminating the trade union protection); this was upheld on appeal on 9 November 1996, and the case was filed.
Dismissals at Santa Fe and La Palmera Farms. This case has already been considered by an appeal court and the company lodged a request for protection (amparo) before the Constitutional Court, which has yet to give a ruling.
The Human Rights Procurator has noted violations of labour law and freedom of association at some of these farms (El Tesoro, Ofelia, La Patria, El Arco, San Rafael Panam and La Argentina).
V. Interviews conducted by the mission
Before entering into the substance of this section, it should be noted that, during the mission, the Congress of the Republic adopted a reform of the Labour Code (Legislative Decree No. 13-2001), which gives effect to some, although not all, of the recommendations of the Committee of Experts with regard to the application of Convention No. 87. Seventeen days after the mission’s departure, Congress adopted another partial reform in Legislative Decree No. 18-2001. These reforms are considered below.
Interview with the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF)
The employers’ representatives told the mission that they deplored all forms of violence, and that the situation in that respect had improved enormously since the signing of the peace agreements in 1996. As regards the other questions raised in Case No. 1970 before the Freedom of Association Committee (which refer to incidents that have taken place over a number of years), they stated that reinforcing and improving the efficiency of the justice system and reforming the procedural rules were envisaged in the peace agreements. It was a matter of priority for the employers that justice should be administered through procedures that dealt with labour issues and other areas of law in a way that was appropriate, effective, swift and up to date. In that regard, the CACIF had undertaken a number of different initiatives to improve the situation. It had attempted to promote alternative systems for resolving disputes (agreements between the parties themselves) in which the parties could freely participate if they so wished. It had requested that new tribunals be established and greater resources be allocated to the justice system. In 1997, it had worked with the trade unions on a draft labour procedural code that was almost complete. In the recent agreement with the trade unions concerning reforms to the Labour Code, it had proposed a more effective system of dealing with infractions of the Code (involving the justices of the peace) and increased fines. With regard to the latter, although the employers and the trade unions had reached an agreement on the text of an agreement, the trade unions had not wished to include this in the reform package. It was therefore unfair for some unions to criticize the employers for exploiting a situation of impunity, since the employers were more concerned than anyone else to establish a sound system for the administration of justice.
The draft labour procedural code negotiated between employers and the unions in 1997 had failed because the current Minister of Labour, a former trade union official, had a very individual view of tripartism: he had unilaterally presented the social partners with a new draft labour procedural code, while the CACIF and the trade unions had more or less agreed on their own in 1997.
In the employers’ view, this attitude on the part of the Minister was also reflected in the successive partial reforms of the Labour Code undertaken with a view to bringing its provisions into line with Conventions Nos. 87 and 98. For example, he did not consult the CACIF or send it a copy of the draft reforms presented to Congress and to the International Labour Conference in 2000, in order to circumvent the need to achieve consensus. According to records of the tripartite commission, the trade unions “would not endorse an initiative [the preliminary draft] that had not been agreed by the commission”. Many of the provisions proposed by the Minister were also, in the employers’ view, unconstitutional.
At the same time, instead of encouraging conciliation in disputes, the Minister of Labour encouraged the use of the courts (thus prolonging the disputes), adopted biased positions in favour of the trade unions, and unjustly and incorrectly accused the CACIF of organizing demonstrations.
As regards social dialogue, the employers have emphasized the contribution of the 1995 direct contacts mission headed by Professor Enrique Marín, and the subsequent creation of the tripartite commission. Since then, progress had been made in social dialogue and in gradually overcoming the mistrust which had resulted from the armed conflict and political “labelling”. In that regard, the employers drew attention to the 1998 agreement, which had been implemented through various legal reforms, and the Legislative Decree of 25 April 2001, which drew together a number of far-reaching historic agreements between the central trade union organizations and the CACIF and addressed many of the problems highlighted by the Committee of Experts. They emphasized how regrettable it was that the Government had wanted, without the approval of Congress, to extend other reforms on which there was no agreement. These included the reform concerning strikes by agricultural workers during harvests, which were potentially very damaging to agricultural enterprises, or the unconstitutional role which it sought to give to the Labour Inspectorate in imposing fines. According to some press releases that appeared after the mission’s visit, the CACIF protested vigorously at the unilateral reforms imposed under the second Labour Code reform of 14 May 2001.
The employers’ commitment to tripartism and social dialogue had been made abundantly clear during the past seven or eight years, and the employers were prepared to go on addressing difficult topics. It was important to establish terms of reference and to ensure that future reforms of the Labour Code and procedural rules would be implemented with competitiveness and job creation in mind. Other issues had also been raised in bipartite talks on the recent reform, and progress was possible.
The CACIF stated that it was prepared to reach agreements within the framework of the tripartite commission on a number of questions raised by the mission (details are given below). Lastly, it appreciated the ILO’s role in the process of social dialogue and emphasized the importance of its continuing role in that process.
Interviews with the trade unions
In the view of the trade union organizations, the armed conflict had left a heavy legacy of mistrust between the social partners. Although this was now being gradually overcome, there were still employers for whom trade unions were synonymous with “guerrillas” and “communists”. The number of killings and other acts of violence against trade unionists had fallen (one trade unionist suggested that there had been 12 killings since 1992), but death threats were still very frequent and the Office of the Attorney-General did not pay enough attention to such acts of violence. There were currently cases of attempted lynching of trade unionists (the mission learned directly of one such attempt and intervened with the authorities to prevent it), and intimidation also occurred in other forms. All the central trade union organizations agreed that, although legislation provided protection against acts of anti-union discrimination, in practice that protection was ineffective because of deficiencies in the justice system and the consistently anti-union stance of the employers, who stepped in immediately to crush any attempt to form trade unions or promote collective agreements. As a result of this, the central trade union organizations thought twice before promoting a union for fear of reprisals which had potentially serious consequences for workers at a time of high unemployment. Anti-union discrimination took different forms: dismissals of workers attempting to set up unions, bargain collectively or carry out trade union actions; circulation of blacklists of union leaders and members among companies; practices aimed at making workers leave their unions; attempted lynching of workers whose reinstatement had been ordered by a court; temporary plant closures or changes of name for anti-union ends; and the use by companies of contractors employing no more than 15 workers in order to prevent the formation of trade unions (the minimum number of workers required to form a trade union is 20). At the same time, employer-dominated parallel trade unions were being created, and non-confrontational “solidarismo” was being used against traditional trade unionism. The problems were most acute in the assembly plants and in the rural sector. According to one central trade union organization, in the coffee sector, which employed 57,000 workers, there were only eight unions. As regards the right to strike, the law made the exercise of that right too difficult and in recent years there had been no cases of a strike being declared legal. In the municipalities there were also dismissals of trade unionists who lodged complaints (the mission heard direct testimony of one trade union delegation). In addition, the Labour Code did not provide for the establishment of industry trade unions.
As regards the deficiencies in the justice system, the Labour Inspectorate (at the time of the interviews) had no authority to apply sanctions, the sanctions that did exist for contraventions of the Labour Code were outdated and ridiculous (maximum fines of 5,000 quetzales) and even then were not applied by the courts. Orders to reinstate workers were not implemented and fines for non-compliance were laughable (between 250 and 5,000 quetzales). Proceedings were inordinately long and might have to pass through four judicial levels of review. Many judges were close to those with economic power and some were corrupt. Complaints against the courts brought before the supervisory authority led nowhere. In the view of the central union organizations, there was no political will to end the situation of impunity and reform the justice system, and successive governments had deferred to the interests of political and economic minorities. A number of central trade union organizations have stated that the current Minister of Labour had made efforts at reform but they had failed because they were mired in the existing structures and in the system of economic minorities. One trade union organization sharply criticized the Minister of Labour and accused him of anti-union discrimination. Successive governments and the authorities in general had, in the view of the trade union organizations, lacked the political will to solve the problems.
The central trade union organizations regard the new dialogue with the employers as an encouraging sign and are eager to achieve progress and conclude agreements. They felt disappointed and let down by the fact that, in the first reform of the Labour Code, which was adopted during the mission, Congress had legislated only on questions on which agreement had been reached with the CACIF, but not on others which had been agreed with the Minister of Labour. According to the press, they also complained of the very limited scope of the second partial reform of the Labour Code which was adopted after the mission left
The trade union organizations stated their readiness to reach agreements within the framework of the tripartite commission on questions raised by the mission, of which further detail is given in the rest of this report.
Interview with Congressional representatives
The mission had a working breakfast with Congressional representatives from two different parties, just hours before the adoption of the first partial reform of the Labour Code (25 April 2001).
During the meeting, which took place in the Congress building, the mission explained the purpose of its visit and emphasized the importance of fulfilling all the requirements set out by the Committee of Experts with regard to freedom of association. The mission also answered various questions of a technical nature on points raised by the Committee of Experts and emphasized the need to strengthen social dialogue.
Interview with the Vice-President of the Republic
The Vice-President of the Republic, who was standing in for the President during the mission’s visit, indicated that by comparison with the country’s past, the period of violence between trade unions and employers was now over and that there had been a considerable reduction in the incidence of threats. As regards the reform of the Labour Code which had just been adopted by Congress (the first reform of 25 April 2001), the President and senior members of the Government had wanted more substantial changes, but unfortunately Congress would not go beyond matters on which agreement had been reached by the central trade union organizations and the CACIF. Clearly, the conditions needed to reform certain provisions regarding the right to strike were not in place but could be reviewed. The Government wanted greater change and wished to equalize the respective power of the employers and workers and avoid favouring one side or the other. To do so, it was important to avoid the “tripartidism” which, in his view, was maintained by the employers only as long as was absolutely necessary to achieve consensus on a desired labour reform. The Executive branch had a duty to guarantee justice and social coexistence and, if the social partners were unable to reach conclusions or take decisions, the State had a duty to act. The trade unions for their part did not always support the Government’s initiatives aimed at helping the workers and promoting freedom of association, and they needed, with the ILO’s help, to acquire greater clarity in their ideas, as well as greater strength and structure.
The Vice-President said that he supported the administration of the Minster of Labour and endorsed the mission’s initiative to form a special unit within the Prosecutor-General’s Office to investigate offences against trade unionists and employers. Referring to the peace agreements, he added that the delays in legal proceedings needed to be corrected.
As regards the criminal cases referred to by the Committee on Freedom of Association, he recalled that the burden of proof was on the prosecution (not the Government), and that there were cases of killings in which there was no material or eyewitness evidence, only suspicions as to the identity of the culprit (however important these might be). As regards the death threats, these were sometimes made by telephone and could be very difficult to trace.
The Executive was considering the complaints made to the ILO and had brought them to the attention of the courts and prosecution service. However, it could not interfere with the work of those authorities.
Interview with the Minister of Labour
The Minister of Labour emphasized the Government’s willingness to honour the obligations arising from ratification of Conventions Nos. 87 and 98. He shared the view of the Vice-President regarding the “tripartidism” demanded by the employers, which amounted to a right of veto on all labour issues. Nevertheless, progress had been made in social dialogue, although more needed to be done. Finding solutions to the problems in the justice system (delays, non-implementation of rulings, obsolete levels of fines, etc.) that had been reported to the ILO was an integral part of the commitments under the peace agreements, and the authorities would have to undertake the necessary reforms. In particular, sanctions for failure to implement court rulings needed to be strengthened, and the Minister referred to the new draft labour procedural code which had been submitted to the social partners and aimed to bring about greater efficiency and speed in labour court procedures. He also supported the proposal to create a special unit within the prosecution service to investigate offences against trade unionists and employers, as well as efforts to strengthen social dialogue. He endorsed the mission’s proposals regarding topics within its mandate for discussion by the tripartite commission (more details of these are given below).
Lastly, he emphasized that the reforms of the Labour Code which the Executive had proposed to Congress went beyond Legislative Decree No. 13-2001 (adopted on 25 April 2001) with regard to the implementation of the recommendations of the Committee of Experts concerning strikes. They also brought up to date the penalties applicable in cases of violation of labour laws and gave the Labour Inspectorate the power to impose penalties, in addition to other improvements (recognition of industry trade unions, etc.).
Interview at the Supreme Court of Justice
The Supreme Court judges provided information on the status and outcome of various criminal and labour court cases relating to Case No. 1970. They drew attention to the efforts that had been made recently through seminars and other activities aimed at formulating coherent criteria on the interpretation of laws, in the light of the complaints made by the trade unions through MINUGUA. A coordinating committee on labour jurisprudence had also been established. This body consisted of senior judges and its purpose was to establish guidelines which should ensure consistency in court rulings. Within one month, the Labour Courts’ Gazette would also reappear and would gather together relevant court rulings and judgements on labour issues.
As regards the failure to implement reinstatement orders, this constituted the offence of “failure to carry out orders issued by a lawful authority” which, according to one judge, could give rise to sanctions under a new procedure allowing the adoption of coercive measures to force an employer to reinstate a worker. Nevertheless, it was obvious that the available fines were not severe. According to the same judge, a prison sentence could be substituted for the fine in the case of a repeat offence.
The execution of reinstatement orders was less effective than it should be, and the Office of the Attorney-General did not attach sufficient importance to the investigation of cases of failure to implement court orders. One judge emphasized that a sanction such as plant closure would undoubtedly be effective.
However, the judges indicated that cases of non-reinstatement following a judicial order to that effect were infrequent.
One judge pointed out that the allegations made in Case No. 1970 dated from before the present peace (1996), and that the situation, while far from perfect, had improved since then, in terms both of criminal activities and labour relations.
Labour court proceedings were subject to serious delays, in particular because of the abuse of applications for annulment or of objections that were lodged (often on unreasonable grounds). The Supreme Court could formulate draft legislation, and, probably in October 2001, once all the necessary consultations with the judicial community had taken place, a draft general procedural code would be put forward. This had been designed to ensure that judicial proceedings would be confined to no more than two instances; possible ways of delaying proceedings would be restricted and proceedings would be speeded up as far as possible, by making conciliation centres available to the parties to a dispute and making it a condition of any judicial examination that those centres be used. This procedure would apply to civil and criminal cases and to (individual) labour disputes.
Interview with representatives of the
Office of the Prosecutor-General
The Prosecutor-General was abroad, and his representatives said that he had handed over to his private secretary the cases presented to the ILO to ensure that they received the maximum attention. The mission was then given written information on the cases before the Committee on Freedom of Association. The representatives said that the mission’s proposal that a special unit be set up within the prosecution service to deal with offences against trade unionists and employers (killings, assaults, death threats, etc.) was a valuable one (other similar units existed), since it would enable a special prosecutor to coordinate and direct the activities of the district courts, consolidate information on all cases, and benefit from the advantages of specialization. It was for the Prosecutor-General to take the final decision, and the mission’s proposal would be submitted to him. A protection programme already existed for witnesses and others involved in criminal trials.
The justice system suffered from a number of serious problems (a heavy workload, fear experienced by witnesses in a violent society, corruption, etc.).
As regards the offences of failure to implement judicial orders (section 414 of the Penal Code), the Office of the Prosecutor-General could not deal with such offences, since the sanction involved was a fine of between 250 and 5,000 quetzales and the procedure similar to the misdemeanours procedure. On the other hand, if the people responsible for disregarding judicial orders were public officials (including mayors), the Office could prosecute them before a lower criminal court, but such cases had first to go through a preliminary hearing (removal of immunity or “desafuero”) before the officials could be tried. Since failure to obtain removal of immunity resulted in what was to all intents and purposes a final ruling which precluded any further action, lack of evidence normally meant that proceedings were delayed until such time as more evidence could be gathered.
In cases of death threats, the Office of the Prosecutor-General took action but also involved the National Police. Problems of coordination with the National Police could arise when, as sometimes happened, the Police claimed the right to direct an investigation.
Proceedings were closed only when a ruling was handed down or a case dismissed; the fact that a given case was “filed” did not mean that it was closed.
* * *
In a communication of May 2001, the Office of the Procurator-General informed the mission that it had commissioned a study with a view to setting up a special unit (investigation unit) which would deal with offences against organizations and their members, and that it planned to get the unit operational as quickly as possible.
Interview with the Human Rights Procurator
The Human Rights Procurator said that violations of freedom of association were very commonplace, and there was a high level of impunity in many labour relations and criminal cases. This was a result of the lengthy proceedings, the failure to implement court reinstatement orders, corruption, and other such factors. Death threats were commonplace and affected all sections of society, including judges, witnesses, public officials and trade unionists. One of the main causes of the deficiencies in the justice system was the method of appointing divisional and court judges. The Labour Inspectorate did not function well in cases of anti-union discrimination. The Human Rights Procurator undertook mediation activities and investigations with a view to formulating a non-binding “conscience” settlement which was published and followed up. However, the Human Rights Procurator ceased to deal with a case once it came before the courts. The Procurator supplied some written information on questions raised in connection with Case No. 1970.
Interview with senior officials of the United Nations
Verification Mission in Guatemala (MINUGUA)
The direct contacts mission wishes to emphasize that MINUGUA is fulfilling its commitments with due regard to the provisions of the ILO Conventions and the recommendations of the Committee of Experts and the Committee on Freedom of Association, which it cites frequently in its reports.
The mission owes MINUGUA a great deal of valuable information on compliance with those provisions of the peace agreements that relate to labour and trade union rights. One point worth mentioning, which rarely came up in other interviews, is the lack of collective agreements (only 161 between 1995 and 1999) and the limited scope of the agreements that do exist (negotiation is basically conducted on a company basis).
The documentation received shows that MINUGUA is concerned by many of the issues raised by the Committee of Experts and the Committee on Freedom of Association (slowness of legal proceedings, legal restrictions, etc.), and that it is fully committed to achieving progress in these areas.
The mission would like to draw attention to the very valuable help that it received from MINUGUA officials, especially Mr. Ricardo Changala and Ms. María Castells.
VI. The partial reform of the Labour Code adopted
by the Congress of the Republic during the mission’s visit and the subsequent
partial reform
As indicated earlier, the first partial reform (Legislative Decree No. 13-2001) concerns trade union matters and was adopted on 25 April 2001, during the mission’s visit. Congress had been asked to consider a draft text by the Executive, on the one hand, and an agreement between the central trade union organizations and the CACIF, on the other. The Congressional Decree set aside the Executive’s draft text and adopted the provisions of the bipartite agreement, with the sole exception of one provision amending section 257 of the Labour Code (detention and trial of persons attempting to incite others to carry out illegal strikes or stoppages).
The mission had formulated observations on the Executive’s draft text and on the agreement, recalling the observations and principles of the Committee of Experts. These observations were transmitted to the Minister of Labour who in turn brought them to the attention of Congress.
It should be noted that before the adoption of the first reform and after the first draft text submitted by the Executive (May 2000), there were successive drafts which either caused frustration among the trade unions or raised their hopes, while the CACIF maintained that it had not been consulted and the Minister of Labour claimed that the employers had abandoned the tripartite commission discussions on these issues. Whatever the case may have been, the trade unions were hoping that Congress would go beyond the issues on which agreement had been reached with the CACIF, the agreement in question having been reached when Congress suspended its discussions and submitted these legislative issues to the social partners for comment in April 2001. The Congressional representatives expressed a willingness, where necessary, to widen the reforms along the lines suggested by the ILO.
Congressional Legislative Decree No. 13-2001, which introduces the first reform, is dated 25 April 2001. Legislative Decree No. 18-2001 introduced the second partial reform of the Labour Code and is dated 14 May 2001, i.e. 17 days after the mission departed. The legislative reform process was influenced by the demand of the United States that Guatemala comply with ILO standards as a condition for allowing the country to remain within the General System of Preferences. In a communication to the ILO dated 2 May 2001, before the second partial reform of the Labour Code, the Minister of Labour informed the ILO that the Executive intended to act on the ILO’s request that it bring the Labour Code into line with Conventions Nos. 87 and 98 as far as the Constitution would allow and as far as it did not create conditions likely to impede the country’s development in the social and economic conditions of today. The Minister requested as a matter of urgency that an answer be given as to whether Legislative Decree No. 13-2001 was consistent with the ILO’s observations, and, if it were not, for an indication as to which provisions needed to be amended to produce wording that would be satisfactory for the ILO and for the country. The ILO replied on 7 May 2001.
Below are set out the points in which the reforms give effect to the recommendations of the Committee of Experts and those points in which they do not.
(a) Provisions which give effect or imply greater adherence
to the recommendations of the Committee of Experts
– the strict supervision of trade unions by the Executive authorities is abolished (former section 211 of the Labour Code);
– the requirement that a prospective member of a trade union executive body have no criminal record and be able to read and write is abolished (former sections 220 and 223);
– the requirement to obtain a two-thirds majority of the union membership for a strike to be called (former section 222) within a union has been abolished; this has been replaced with a provision that for a strike to be approved, one?half of the quorum of the respective assembly plus one member must vote in favour;
– the requirement that at least two?thirds of workers at an enterprise must vote in favour for strike action to be legal is abolished (former section 241); instead, it is enough to obtain one?half of the votes of the workers at the enterprise plus one vote, not including workers in positions of management trust or those representing the employer [the new rule is certainly an improvement over the previous one, but the Committee of Experts will have to decide as to its compatibility with the principles of freedom of association];
– the prohibition of strikes or stoppages during harvests under former section 243(a) and strikes by workers in enterprises or services whose interruption would in the Government’s view seriously affect the national economy (section 243) is repealed, so that suspension of a strike by the President is now possible only if it seriously affects public services that are essential to the country (new final paragraph of section 243). The Committee of Experts will have to rule on the compatibility of this provision with the principles of freedom of association;
– the provision allowing the arrest and trial of persons publicly inciting others to illegal strikes or stoppages is repealed (former section 257);
– in the case of illegal strikes or stoppages, there is no longer an obligation for courts to order the National Police to ensure the continuity of work (former section 255); in its place, there is now a provision according to which judges “may” order and implement precautionary measures to guarantee continuity of work and the right to work for persons wishing to continue working;
– also repealed (implicitly, by virtue of the new section 222 of the Labour Code) is the requirement for a two-thirds majority of a trade union’s members for the signing of a draft collective agreement, which was part of section 2(d) of the Regulations of 19 May 1994 concerning collective agreements.
(b) Provisions to which the Committee of Experts objected and which
are not covered, or not obviously covered, by the reforms
– the requirement to be of Guatemalan origin (this requirement is derived from the Constitution) and to be actively employed by a company in order to be elected to trade union office (sections 220 and 223 of the Code);
– the sanction of one to five years’ imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that contribute to the country’s economic development with a view to harming national production (section 390(2) of the Labour Code). The Committee of Experts will have to determine whether, with the repeal of section 257 (regarding the arrest and prosecution of persons calling publicly for an illegal strike), section 390(2) still poses problems in terms of compatibility with the principles of freedom of association;
– the requirement for compulsory arbitration without the possibility of recourse to strike action in the public services which are not essential stricto sensu, such as the public transport services and services related to fuel, and the prohibition of trade union solidarity strikes (section 4, clauses (d), (e) and (g), of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee of Experts will have to determine whether any of these restrictions continue to pose problems of compatibility with the principles of freedom of association, in view of the new wording of section 243, with its definition of essential services where a minimum service may be required; this is currently limited to situations of danger to life or to the safety of all or part of the population;
– the absence of a consultation procedure (within the framework of the collective bargaining procedure in the public sector, governed by Legislative Decree No. 35-96) to allow the trade unions to express their views to the financial authorities so that the latter could take account of those views when drawing up the budget.
On the other hand, Legislative Decree No. 18-2001 directly or indirectly answers some of the questions raised by the Committee on Freedom of Association (excessive delays in court proceedings in cases of anti-union discrimination, final judicial rulings for the reinstatement of dismissed workers and refusal to bargain collectively in some companies), in the sense that it considerably strengthens the obligation to reinstate workers dismissed for anti-union reasons, as well as the sanctions in cases of contraventions of the Labour Code (based on a variable multiple of the minimum wage). It also obliges the offender to remedy the irregularity, imposes further sanctions in cases of repeat offences, and enables the General Labour Inspectorate to dictate settlements and impose sanctions. The Decree also provides that the court must appoint one of the employees to act as executor and ensure that dismissed workers are actually reinstated in cases where a trade union is being established, or in cases of collective disputes in which legal immunity has not been respected.
The various drafts of a labour procedural code
In the section concerning the interviews conducted by the mission, there are references to three drafts or preliminary drafts of a labour procedural code which are intended to solve the problem of judicial delays. One was produced by the CACIF and the trade unions in 1997, and was on the point of being finalized; another more recent one was produced by the Ministry of Labour; and a third was being finalized by the Supreme Court and was due to be submitted in the near future as a bill which, if approved, would become a General Procedural Code applicable to civil, labour (individual disputes) and criminal cases.
The mission delivered a communication from the ILO’s International Labour Standards Department with observations on the draft procedural code produced by the Ministry of Labour from the perspective of the application of Conventions Nos. 87 and 98.
As indicated earlier, the mission helped to guide discussions on the efficacy of the procedures. The public authorities and the social partners were fully aware of the deficiencies in the workings of the justice system, the undesirable consequences of lengthy proceedings, and the obsolete fines imposed under the Penal Code (section 414) for failure to comply with judicial orders. It is likely that the social partners and the public authorities will discuss the most appropriate procedural model.
VII. Conclusions and results
The mandate of the mission
As indicated previously, the mission’s objective was:
(a) to follow up the recommendations of the Committee on Freedom of Association regarding matters relating to Case No. 1970 (killings of trade unionists, excessive delays in proceedings in connection with cases of anti-union discrimination, non-compliance with judicial orders arising from those cases, etc.); and
(b) to collaborate in efforts to bring Guatemalan legislation into line with Conventions Nos. 87 and 98 so as to meet the criticisms voiced by the Committee of Experts.
It should be noted, first, that the mission was able to carry out all its planned activities in an atmosphere of consideration and respect from the government authorities, legislature, judiciary and the Office of the Attorney-General, as well as from employers’ and workers’ organizations. It was important in that context to ensure that the questions raised by the Committee on Freedom of Association and the Committee of Experts were still relevant. The concern expressed by the various authorities to respond to the points raised by the ILO’s supervisory bodies only confirms the importance of the latter in promoting the principles and values of freedom of association.
Regarding the questions raised in Case No. 1970
Brief résumé of the problems
In accordance with its mandate, the mission in all its interviews with government officials, the judiciary, legislative authorities and the Office of the Attorney-General, drew attention to the concerns of the Committee on Freedom of Association at the acts of violence and discrimination suffered by trade unions officials, as well as the situations of impunity, delays or ineffective procedures for dealing with anti-union behaviour. As illustrated in sections IV and V of this report, the Government representatives and the other authorities interviewed explained various aspects of the situation in Guatemala which have a bearing on these issues and reported on the efforts made to resolve the problems. They provided the mission with information on all the pending questions raised by the Committee on Freedom of Association in Case No. 1970.
Regarding the points raised by the Committee, many of our interlocutors referred to the after-effects of a history of violence, confrontation and mistrust. There is no doubt that the peace agreements marked a turning point and have set Guatemala on the path towards a gradual recovery of basic human rights, including the right to life and security of the person. This should not be underestimated. Nevertheless, the after-effects in question have not yet been overcome and are still evident in the form of threats and acts of anti-union discrimination (which in the opinion of the trade unionists are frequent), and in the nature of labour relations, especially in terms of mutual rejection and prejudices.
This “culture”, which has grown out of the ashes of past violence, is also reflected in the institutional machinery of legal process and reparation: judges, witnesses, labour inspectors, and parties to disputes often find themselves faced with threats which create an insuperable obstacle to the administration of justice and the exercise of police authority.
There are also other factors which contribute to the institutional ineffectiveness, and these relate to the competent bodies, and to the procedures and methods of implementation. In investigations of offences, lack of resources, poor coordination with the civil police, duplication of authorities and disputes about official powers are among the problems faced. When it comes to violations of the principles of freedom of association and labour protection standards, exacerbating factors include the inadequacy of the courts, unsatisfactory methods of appointing and supervising judges, the tendency for existing procedures to be abused (which is one factor explaining the delays in proceedings), the absence of adequate sanctions in cases of failure to comply with court orders, the impotence of the penal system to deal with violations of labour laws (excessive length of procedures, etc.).
Initiatives and results
A new process of social dialogue
It is clear that in this situation of mistrust between the parties, a sustained exercise in social dialogue – quite apart from any possible specific goals of that process – becomes an end in itself. It serves to promote mutual knowledge and recognition, and contributes to the goal of conciliation and thereby to attaining the objectives of the peace agreements.
With this in mind, the mission proposed to the central employers’ organization, the central trade union organizations and the Government, that a new process of dialogue be established with the assistance of the ILO, this time geared to identifying options for remedying the severe lack of institutional effectiveness evident from the questions raised before the Committee on Freedom of Association. Aspects of this include: reforming procedures for settling individual and collective labour disputes (following the proposal to speed up procedures and ensure compliance with existing laws and court rulings); development of alternative techniques and mechanisms for prevention and settlement by the parties themselves of disputes; and tripartite review of alleged acts of violence affecting trade unionists and employers with a view to collaborating in efforts to bring down the incidence of such acts, ensure they are properly investigated and protect the victims. The employers’ associations and trade unions, as well as the Ministry of Labour, have expressed their readiness to participate in this process of social dialogue; the ILO, through the San José Multidisciplinary Advisory Team and its social dialogue programmes, should play its part in setting up the process, promoting its development and maintaining the commitment of the parties. The first meeting will probably take place in July with a view to setting up the necessary committees.
A sign of the high regard in which the ILO is held in Guatemala is the fact that, in including the question of reforming labour law procedures in the future social dialogue agenda, the parties agreed, at the mission’s urging, to set aside certain a priori objections (particularly by the employers and the Ministry of Labour) to various reforms on which there had supposedly been no consultation. Also in preparation is a proposed procedural reform drafted by the Supreme Court with a view to consolidating civil, commercial and labour procedures. One of the first commitments at the dialogue table must be a commitment to building consensus on the procedural model considered to be most effective in dealing with labour conflicts.
Investigations of offences and other questions
relating to the penal system
The mission, with the Vice-President, the Minister of Labour and officials of the Prosecutor-General’s Office, considered the need for measures to improve the investigation of offences against trade unionists. These talks led to a certain degree of convergence in the sense that the creation of a special unit dedicated to this task within the Prosecutor-General’s Office would allow officials to specialize and centralize information, and could lead to better results. The mission accordingly recommended that this option be considered. On 14 June 2001, the Government reported that the Special Investigation Unit (Fiscalía Especial) had begun work on 8 June. It goes without saying that, as indicated previously, its effectiveness will depend on the provision of adequate resources, proper subordination of the civil police and avoidance of any duplication of effort.
As regards the recurrent failure to implement court rulings, it seems obvious that structural factors of the kind referred to previously are still at work. We referred to these as “after-effects” of historical tendencies, not yet fully overcome, towards violent forms of behaviour and the consequent erosion of the rule of law. Other factors have also contributed to the problem. These include the method of appointing judges and the inadequate machinery for monitoring their activities. A number of those we spoke to drew attention to the virtual absence of any real penalties for non-compliance with judicial rulings, the only available penalty being outdated fines under section 414 of the Penal Code. The minor status of such offences under the Penal Code is shown by the fact that they are dealt with by justices of the peace, rather than by criminal court judges. In the light of the conclusions of the Committee on Freedom of Association, the mission suggested to the Vice-President that it would be appropriate to set about amending the relevant provisions determining the penalty and the competent authority, in such a way as to increase their deterrent effect and punish with sufficient vigour the failure to respect judicial rulings which so dangerously undermines the credibility of the justice system.
The mission found that everyone to whom it spoke was agreed on the need to strengthen the system of recording and punishing contraventions of labour legislation which is hampered by the excessive length of judicial proceedings and the inadequacy of existing penalties. There was, however, disagreement as to the right way of rectifying this deficiency. This question had already been dealt with in the bills under discussion during the mission’s visit, and corresponding provisions were approved in the legal reforms adopted after the mission left (Legislative Decree No. 18-2001 of 14 May 2001). In that text, the power to impose sanctions – which had hitherto been the prerogative of the labour tribunals – has been given to the Labour Inspectorate (the employers regard this as unconstitutional), while penalties have been updated by increasing them and setting them in relation to the minimum wage.
Towards strengthening the labour relations system
In many of the interviews, it became obvious that there was a need to strengthen the labour relations system. To do this, the mission considers that it would be very helpful to carry out a diagnostic survey of its status, its overall context, the factors that are preventing it from working properly, and possible ways of overcoming them. The ILO could provide technical assistance for such a study, and the conclusions could be discussed as part of the process of social dialogue.
The reservations expressed by the Committee of Experts
As indicated in the opening lines of this report, the Ministry of Labour had requested that the mission, the original purpose of which was to follow up the recommendations of the Committee on Freedom of Association in Case No. 1970, also address the questions raised by the Committee of Experts. During its visit, the mission stressed the importance of bringing legislation fully into conformity with Conventions Nos. 87 and 98, and made observations on the bills and agreements under discussion at that time in the light of the reservations expressed by that supervisory body and of the principles embodied in Conventions Nos. 87 and 98. Those observations were passed on to the Minister of Labour who in turn brought them to the attention of Congress. The mission also had meetings with the Congressional authorities, and emphasized in those meetings the need to find solutions that would answer the reservations of the Committee of Experts.
The content and scope of the legislative reforms are described in section VI of this report. As indicated there, the Legislative Decree adopted during the mission’s visit and the one adopted 17 days after its departure constitute a significant step forward in the application of Conventions Nos. 87 and 98, in that they repeal or amend many of the provisions criticized by the Committee of Experts (and have a more or less positive impact with regard to the questions raised by the Committee on Freedom of Association), although such legislative decrees have been severely criticized by both the employers’ and workers’ organizations, albeit for different reasons.
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I would not wish to conclude this report without expressing my profound personal gratitude to my colleagues during the mission. After the daunting work of preparing for the mission, the experience and wise counsel of Mr. Alberto Odero de Dios were crucial to its success. Mr. Christian Ramos Veloz, based in San José, was jointly responsible for the preparatory work. His extensive knowledge, cooperative spirit and skilful participation were of great value to the team in its deliberations.
Buenos Aires, 9 June 2001. Adrián O. Goldin.
85. The Committee thanks Professor Adrián Goldin for his comprehensive mission report. With regard to the alleged murders of trade union members, the Committee notes that, according to the Government, the two people responsible for the murder of the trade union member Robinson Manolo Morales Canales were sentenced by the courts to 20 and 25 years imprisonment respectively. The Committee notes that investigations have begun into the murders of Oswaldo Monzón Lima, Hugo Rolando Duarte Cordón and Carlos Lij Cuc, and suspects have been identified. The Committee deeply regrets that the judicial proceedings relating to the murders of Luis Bravo and Pablo Antonio Guerra Pérez have been closed without those responsible being identified.
86. The Committee also notes that investigations have begun into the murders of Baldomero de Jesús Ramírez, José Feliciano Vivas and Carlos Solórzano. The Committee requests the Government to keep it informed with regard to these matters and to provide new information on the murders of José Alfredo Chacón Ramírez and Ismael Mérida. The Committee also requests the complainant to provide further information on the murder of Cesáreo Chanchavac.
87. Although most of these murders are not recent, the Committee notes with grave concern that, according to the mission report, the Human Rights Procurator stated that violations of freedom of association were very commonplace and that there was a high level of impunity in many labour relations and criminal cases. The Committee reminds the Government that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; it hopes that the investigations and proceedings currently under way will allow those responsible for the murders to be identified and punished.
88. With regard to the alleged death threats, the Committee notes with grave concern that according to the mission report, trade union members continue to receive death threats. It notes that the Government states that investigations or legal proceedings are currently under way in the cases of Juan Gutiérrez Garciá, Rolando Quinteros and Pablo Garza. The Committee notes that José Angel Arzúa, Elmer Salguero García, Feliciano Izep Zuruy and José Domingo Guzmán have not provided official complaints of death threats. In this respect, the Committee requests the Government that an independent inquiry be established as soon as the authorities are aware of death threats having been made, whether or not an official complaint has been made. With regard to the alleged death threats to Everildo Revolario Torres, Herminio Franco Hernández, José Pinzón and Rigoberto Dueñas, the Committee notes that the Government has requested the Human Rights Procurator to provide them with protection.
89. On a more general note the Committee notes with interest that at the request of the direct contacts mission a special unit within the Prosecutor-General’s Office, which aims to improve the efficiency of investigations into offences against trade union members, began to function in June 2001. The Committee hopes that the new unit will help speed up the criminal investigations already under way and that it will have sufficient budgetary allowance, control over the police and will help avoid duplication of investigative proceedings. The Committee supports the proposal of social dialogue with the assistance of the ILO (accepted by the Government and the social partners) to review, on a tripartite basis, the alleged acts of violence affecting trade union members and employees with a view to collaborating in efforts to bring down the incidence of such acts, ensure they are properly investigated and protect the victims. The Committee hopes that this technical assistance programme will begin as soon as possible.
90. The Committee notes that judicial proceedings have begun with regard to the allegation concerning the raid on the home of trade union member Francisco Ajtzoc Ajcac. The Committee notes that the Government did not reply specifically to the allegation of the stabbing of the General Secretary of the trade union of the Hotel Camino Real and reiterates its request to the Government to indicate whether an investigation has begun into this allegation.
91. With regard to the allegations of anti-union discrimination, the Committee notes that the direct contacts mission report indicates that exacerbating factors in violations of the principles of freedom of association and labour protection standards include the inadequacy of the courts, the unsatisfactory methods of appointing and supervising judges, the tendency for existing procedures to be abused (which is one factor explaining the delays in proceedings), the absence of adequate sanctions in cases of failure to comply with court orders, the impotence of the penal system to deal with violations of labour laws (excessive length of procedures, etc.). The Committee notes with interest that the Government and the social partners also accept that social dialogue established with the assistance of the ILO will identify “options for remedying the severe lack of institutional effectiveness evident from the questions raised before the Committee on Freedom of Association: aspects of this include reforming procedures for setting individual and collective labour disputes (following the proposal to speed up procedures and ensure compliance with existing laws and court rulings), the development of alternative techniques and mechanisms for prevention and settlement by the parties themselves of disputes”.
92. The Committee hopes that ILO assistance will take place in the shortest possible time. The Committee also notes with satisfaction that two legislative decrees have been adopted, in particular Legislative Decree 18-2001 of 14 May 2001, adopted following the direct contacts mission, wherein, among other things, there are mentioned improvements relating to the issues presented in Case No. 1970. Specifically, the Committee notes that in the latter Decree, the power to impose sanctions – which had hitherto been the prerogative of the labour tribunals – has been given to the Labour Inspectorate, while penalties have been updated by increasing them and setting them in relation to the minimum wage, in order to ensure compliance.
93. The Committee insists on the need to punish more seriously the crime of non-compliance with judicial rulings (for example, those that call for the reinstatement of trade union members), as these are currently punished by a fine which is not enforced, and considers that the labour legislation should be revised so that cases of trade union discrimination are processed rapidly. The Committee requests the Government to take the necessary measures in consultation with the most representative employers’ and workers’ organizations.
94. With regard to the specific allegations of anti-union discrimination, the Committee notes that the judicial authority ordered the reinstatement of the trade union members dismissed from the Santa Lucía la Mayor farm and the El Tesoro farm, and the dismissed workers from Santa Anita farm accepted an out-of-court settlement with the farm. The Committee notes that the judicial authority declared the order of reinstatement of trade union members from La Argentina farm overruled but ordered that the workers be paid compensation. The Committee also notes that the judicial authority lifted protective measures for trade union members at the San Rafael Panam farm and for a number of trade union members at the La Patria farm (dismissed in March 1996).
95. The Committee notes, however, that the judicial proceedings relating to dismissals at the Ofelia and La Patria farms (dismissed in August 1995) and the Santa Fe and La Palmera farms are still pending. The Committee requests the Government to provide specific information in this respect, and also to provide information on the dismissals at the El Arco farm (1997) and the alleged impossibility of negotiating a collective agreement at the San Carlos Miramar farm. The Committee emphasizes the importance of revising judicial proceedings in order to avoid the possibility of four legal proceedings or at least so that the legislation ensures that the legal decisions on reinstatement in the first instance are provisionally carried out until confirmed during a later appeal. Finally, the Committee draws the Government’s attention to the availability of ILO technical assistance to facilitate the implementation of the Committee’s recommendations.