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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Guatemala (Ratification: 1952)

The Committee notes the Government’s report and its reply to the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation), of 31 August 2005, and the Trade Union Confederation of Guatemala (UNSITRAGUA) of 26 August 2006. The Committee also notes the comments made by the ITUC, dated 28 August 2007, which refer to legislative matters and issues relating to the application of the Convention in practice which have already been raised by the Committee and, particularly, threats and harassment against a trade union leader, the attempted murder of a leader of the teaching sector and the kidnapping for two hours of a trade union leader. The Committee requests the Government to provide its comments in this respect.

The Committee also notes the comments made by the Guatemalan Trade Union Movement, which groups together many trade union organizations (CTC, CGTG, CUSG, CNOC, CNSP, FENASTEG, FESEBS, FESTRAS, FESOC, FNL, SITRADOCSA, SITRADEORSA, SITRAPDEORSA and UNSITRAGUA), dated 27 August 2007. The Committee further notes the various cases that are being examined by the Committee on Freedom of Association, some of which relate to serious allegations concerning the murder of a trade union leader. The Committee also notes the conclusions of the technical assistance mission which visited the country from 26 to 28 February 2007.

Acts of violence against trade unionists

The Committee recalls that in previous observations it noted acts of violence against trade unionists and requested the Government to provide information on developments in this respect. The Committee notes that the Government provides information supplied by the Office of the Special Investigator into crimes against journalists and trade unionists of the Office of the Public Prosecutor concerning complaints relating to acts of violence against trade unionists. In accordance with this information, seven complaints were made in 2007, compared with 37 in 2006 and 43 in 2005. In addition, two rulings have been handed down, one in 2004 and another in 2006, with one person convicted in each case. There have also been cases of settlements through conciliation and 13 cases prepared and awaiting examination by the courts. In this respect, the Committee notes the conclusions of the technical assistance mission which emphasized the existence of situations of anti-union violence against trade unionists, including death threats, acts of intimidation and even the murder of a trade union leader in 2007. According to the information received by the mission, 17 trade unionists are benefiting from official security measures. In this respect, the mission welcomed the fact that, at its request, the Government provided protection measures for the Secretary-General of the Union of Workers of the Quetzal Port Enterprise, and the headquarters of the union. The Committee notes that the Office of the Public Prosecutor provided information to the mission on the situation with regard to complaints and criminal proceedings relating to crimes against trade unionists. The Committee notes that, in its conclusions, the mission indicated that the complaints made only lead in very few cases to the identification and punishment of those responsible. In this respect, while noting certain protection measures for trade unionists, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members, and in particular deeply regrets the murder of a trade union leader in 2007. It recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will take the necessary measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also asks the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence, prosecuting and penalizing them in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–           restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them. In this respect, the Committee notes the indication by the technical assistance mission in its conclusions that “the legislation in force raises obstacles to the adequate development of trade unionism, starting with the impossibility in practice to establish industry unions, in view of the requirement in law for such organizations only to be accepted when their founders demonstrate that they represent 50 per cent plus one of the workers in the sector, which is clearly impossible to achieve”. The mission also referred to the lack of detailed statistics on trade unions and higher-level organizations;

–           restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–           restrictions on the free financial administration of trade union organizations under the Basic Act on supervision by the tax administration, which in particular allows inspections without prior notice. In this respect, the Committee notes that the technical assistance mission indicated in its conclusions that over the past eight years only one inspection of trade union accounts has been carried out and that financial investigations are exclusively based on disparities detected through information technology;

–           restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86). The Committee notes the emphasis placed by the technical assistance mission on the fact that there have not been any legal strikes since the 1970s. Indeed, according to the mission, “the problem lies in the excessive judicial basis of labour relations law, which in other countries is a matter for the labour administration and not the judiciary. Rulings by judges tend to hold sway when collective solutions are being sought and there is an absence of typical trade union action. It noted accordingly that the last lawful strike was held in 1975 and that for over ten years there has not been any type of strike”.

With reference to these matters, the Committee notes the Government’s indication that the technical assistance mission was extremely useful. The Government reports that following the mission tripartite meetings were held in the Tripartite Legal Reform Subcommittee, the pending issues were reviewed and a priority was established among the issues. A number of meetings have been held and the proposals made by the Committee have been reviewed, some of which had already achieved consensus in 2001. These issues include the amendment of section 390 of the Penal Code. The Government requests continued technical assistance in this respect.

In general terms, the Committee notes that the technical assistance mission also found that “the basis of the Guatemalan problem in the field of freedom of association and collective bargaining lies in the existence of a labour law system which, in both substantive and procedural terms, prevents and raises obstacles to the appropriate development of trade union activity and accordingly to collective bargaining and, as indicated by the ILO supervisory bodies, is in objective violation of Conventions Nos 87 and 98. Without the reform of the system, it is very difficult to propose an appropriate solution, particularly since both the social partners and the Government are imbued with a culture that follows very closely procedures arising out of this legal system”. The Committee observes with concern that the serious problems on which it has been commenting for many years continue to persist and that, despite the tripartite discussion at the national level and the technical assistance provided on various occasions, there has not been significant progress. The Committee considers that a reform of existing legislation is needed in order for the guarantees expressed in the Convention. The Committee strongly hopes that the new Government, with the assistance of the mission which will be held at the end of April in 2008, will show the political will to resolve these issues. The Committee requests the Government to provide information in its next report on any positive developments in relation to the various issues raised.

Other matters

Export processing sector. The Committee previously requested the Government to provide information on any complaints relating to violations of trade union rights in the export processing sector over the past two years, and on their outcome. In this respect, the Committee notes that the Government attaches information provided by the General Directorate of Labour according to which there are seven active trade union organizations. The Government also forwards information supplied by the general labour inspectorate relating to complaints of violations of Conventions Nos 87 and 98 between July 2006 and June 2007, of which one in 2006 related to the export processing sector. In 2007, there have not been complaints relating to the export processing sector. The Government indicates that since the establishment of the Export Processing Inspection Unit in 2003, the latter is responsible for addressing all types of complaints and labour disputes in the sector. Two workshops have been held and it is coordinating with the CGTG the organization of workshops addressing the subject of trade union rights. The Committee notes the Government’s indication that technical and financial assistance has been requested from the ILO Subregional Office in San José in Costa Rica to hold monthly tripartite seminars on freedom of association and collective bargaining in the export processing industry. The Committee welcomes this initiative and hopes that the necessary technical assistance will be provided. In this regard, noting that in their latest communication the trade union organizations refer to significant problems relating to trade union rights, the Committee requests the Government to take the necessary measures to give full effect to the Convention in export processing zones and to continue providing information in this respect.

Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National State Union Workers’ Federation (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee requested the Government to keep it informed of legislative developments in this respect. In this connection, the Committee notes the Government’s indication that the legislative initiative proposing amendments to the Civil Service Act was the subject of broad consultation and has received one favourable and another unfavourable opinion in the various commissions of the Congress of the Republic. The Government indicates that it requested technical assistance from the Office to assess and make the necessary recommendations and proposals on the compatibility of this legislative initiative with Conventions Nos 87 and 98. The Committee expresses the firm hope that, with the contribution of the requested technical assistance, the Civil Service Bill will be in full conformity with the provisions of the Convention. It requests the Government to keep it informed on this subject.

Situation of many workers in the public sector who do not benefit from trade union rights. The Committee notes that, according to the technical assistance mission, there are a high number of workers classified as temporary, daily or occasional and that these classifications are not set out in the law, but in the General State Budget, as indicated in the Manual of Budget Classifications for the public sector in Guatemala. These workers (they are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. In this connection, the Committee recalls that, in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, shall have the right to establish and to join organizations of their own choosing. In this respect, the Committee requests the Government to take the necessary measures to ensure that all workers in the public sector, including those engaged under item 029 of the general state budget, benefit from the rights and guarantees set out in the Convention. The Committee requests the Government to keep it informed on this subject.

Tripartite National Committee. Finally, the Committee previously requested the Government to examine in the Tripartite National Committee the issues raised by UNSITRAGUA in 2005. In this regard, the Committee notes the Government’s indication that, due to the new composition of the Tripartite Committee on International Labour Affairs and the failure to appoint one of its members, it has not been possible to make progress in the work assigned to the tripartite subcommittees and councils. The pending issues raised by UNSITRAGUA will be examined in the context of the Legal Reform Subcommittee, which has just started to meet again; the pending agenda will be reviewed and it has been agreed on a tripartite basis that this issue will be re‑examined by the Tripartite Committee on International Labour Affairs. The Government is awaiting the communication from UNSITRAGUA to update the list of pending cases. It is also hoped to address the cases raised by UNSITRAGUA, in relation to which the Committee on Freedom of Association has recommended that investigations be undertaken, in the context of the Tripartite Committee. In this connection, the Committee notes that, according to the technical assistance mission, the Tripartite Committee requires technical assistance to improve its operation. The mission noted that the Tripartite Committee plays a valuable role in social dialogue and in slowing down undesirable legislative initiatives and draft texts, as well as in examining and resolving collective disputes, but that it does not succeed in putting forward joint proposals in relation to most of the pending problems. The Committee also notes the appreciation expressed by the mission that the Government (and the Labour Commission of the Congress) have requested additional technical assistance from the ILO to overcome the pending problems. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Labour Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee invites the Government to take the necessary measures in order to ensure that the issues raised by the Guatemalan Trade Union Movement in its communication of 27 August 2007 are also examined by the Tripartite Committee.