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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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