Allegations: the complainant organization alleges that a number of provisions of
the Criminal Code and the Labour Code, as well as a Ministerial Resolution, impede the free
exercise of freedom of association; and that leaders and members of a trade union of
municipal workers were the victims of anti-union dismissals
- 297. The complaint is contained in three communications dated 1 June 2012
from the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG).
- 298. Since there has been no reply from the Government, the Committee has
been obliged to postpone its examination of the case four times and has made three
urgent appeals to the Government indicating that, in accordance with the procedural
rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it
could present a report on the substance of the case at its next meeting, even if the
requested information or comments had not been received in time [see 368th Report, para.
5; 370th Report, para. 6; and 371st Report, para. 6]. To date, the Government has not
sent any information.
- 299. Guatemala has ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
A. The complainant’s allegations- 300. In its three communications of 1 June 2012, the complainant
organization alleges that:
- (i) a number of provisions of the Criminal Code
(sections 256, 292, 294, 390 and 414) promote the criminalization of peaceful labour
protests by laying down an excessively general and subjective characterization of
offences such as obstructing public transport, stopping or disrupting the activities
of enterprises that contribute to the economic development of the country and
occupying buildings;
- (ii) several provisions of the Labour Code (sections
220(c), 223(d) and 226) relating to, inter alia, the motives for the dissolution of
trade union organizations and the possibility of the labour administration imposing
amendments to trade union statutes restrict the freedom of trade union organizations
to establish their statutes independently, to organize themselves at the
international level and to perform their social and political
functions;
- (iii) Ministerial Resolution No. 126/2012, which lays down the
“regulations governing the appointment of representatives and substitutes from
workers’ and employers’ organizations to participate in national and international
committees”, establishes criteria of representativeness which impede the exercise of
freedom of association on the basis of the legitimacy recognized in Article 10 of
ILO Convention No. 87 and which restrict the freedom of such organizations to elect
freely their representatives;
- (iv) seventeen leaders and members of the
Trade Union of Workers of the Municipality of Nuevo San Carlos in the Department of
Retalhuleu were the victims of anti-union dismissals in May 2012 and the Ministry of
Labour and Social Welfare did not intervene to halt this violation of freedom of
association.
B. The Committee’s conclusions
B. The Committee’s conclusions- 301. The Committee regrets that, despite the time that has elapsed since
the presentation of the complaint, the Government has not replied to the complainant’s
allegations, even though it has been requested several times, including through several
urgent appeals, to present its comments and observations on this case.
- 302. Hence, in accordance with the applicable procedural rules [see 127th
Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is
obliged to present a report on the substance of the case without being able to take
account of the information that it had hoped to receive from the Government.
- 303. The Committee reminds the Government that the purpose of the whole
procedure established by the International Labour Organization for the examination of
allegations of violations of freedom of association is to ensure respect for trade union
rights in law and in practice. The Committee is confident that, while this procedure
protects governments against unreasonable accusations, they must recognize the
importance of formulating, for objective examination, detailed replies concerning the
allegations brought against them [see First Report of the Committee, para. 31]. The
Committee requests the Government to be more cooperative in the future.
- 304. The Committee notes that this case refers firstly to allegations
that a number of provisions of the Criminal Code and the Labour Code, as well as a
Ministerial Resolution, impede the exercise of freedom of association and, secondly,
that 17 leaders and members of the Trade Union of Workers of the Municipality of Nuevo
San Carlos in the Department of Retalhuleu were the victims of anti-union dismissals in
May 2012 and the Ministry of Labour and Social Welfare did not intervene to halt these
violations of freedom of association.
- 305. As to the legislative and regulatory provisions mentioned in the
complaint, the Committee takes note of the concern expressed by the complainant
organization that the provisions in question, inter alia, promote the criminalization
and prohibition of peaceful labour protests and restrict the freedom of trade union
organizations to establish their statutes independently, to organize themselves at the
international level and to perform their social and political functions. Hence,
recalling the importance of ensuring that domestic legislation complies with the
principles of freedom of association and collective bargaining laid down in the relevant
Conventions, and that the application of the legislation does not impede the exercise of
freedom of association, the Committee requests the Government to send its observations
on the legislative and regulatory provisions mentioned in the complaint without
delay.
- 306. Also recalling that “the Government is responsible for preventing
all acts of anti-union discrimination and it must ensure that complaints of anti-union
discrimination are examined in the framework of national procedures, which should be
prompt, impartial and considered as such by the parties concerned” [see Digest of
decisions and principles of the Freedom of Association Committee, fifth (revised)
edition, 2006, para. 817], the Committee urges the Government to conduct an independent
inquiry into the dismissals mentioned in the complaint without delay and, should it be
found that the dismissals were anti-union in nature, to reinstate the workers concerned
to their posts or, should this prove impossible, to pay them adequate compensation so as
to constitute a sufficiently dissuasive sanction.
The Committee’s recommendations
The Committee’s recommendations- 307. In the light of its foregoing interim conclusions, the Committee
invites the Governing Body to approve the following recommendations:
- (a) The
Committee deeply regrets to note that, despite several requests and urgent appeals,
the Government has failed to provide any information on the allegations.
- (b)
The Committee requests the Government to send its observations on the legislative
and regulatory provisions mentioned in the complaint without delay.
- (c)
Recalling that the Government is responsible for preventing all acts of anti union
discrimination and that it must ensure that complaints of anti union discrimination
are examined in the framework of a prompt and impartial procedure, the Committee
urges the Government to conduct an independent inquiry into the dismissals mentioned
in the complaint without delay and, should it be found that the dismissals were
anti-union in nature, to reinstate the workers concerned to their posts or, should
this prove impossible, to pay them adequate compensation so as to constitute a
sufficiently dissuasive sanction.
