Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations received on 1 September 2015 of the: (i) International Trade Union Confederation (ITUC); (ii) Autonomous People’s Trade Union Movement of Guatemala and the global trade unions of Guatemala; and (iii) the Guatemalan Union, Indigenous and Peasant Movement (MSICG). The Committee notes that these observations relate to matters examined by the Committee in its present observation as well as to denunciations of violations in practice on which the Committee is requesting the Government to provide its comments. The Committee also notes the joint observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2015, which refer to matters examined by the Committee in the present observation. Finally, the Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Complaint made under article 26 of the Constitution of the ILO for non-observance of the Convention. The Committee notes that, at its 325th Session (November 2015), the Governing Body decided to postpone until its 326th Session (March 2016) the decision to establish a commission of inquiry to examine the complaint made under article 26 of the Constitution of the ILO by various Worker delegates to the 101st Session of the International Labour Conference (June 2012) concerning non-observance by Guatemala of the Convention. In particular, the Committee notes that the Governing Body: (i) once again urged the Government to take, without delay, all the measures necessary to fully implement the roadmap adopted on 17 October 2013 by the Government of Guatemala in consultation with the social partners and the key indicators related to the roadmap adopted by the Tripartite Committee on International Labour Affairs on 15 May 2015; and (ii) invited the tripartite constituents of Guatemala to reach agreement with the Office before the end of 2015 on the nature of the extended mandate of the ILO representation in the country.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion in the Conference Committee on the Application of Standards (hereinafter, the Conference Committee) in June 2015 on the application of the Convention by Guatemala. In particular, the Committee notes that the Conference Committee reached specific and detailed conclusions on: (i) the investigation and conviction of those guilty of murders of trade union leaders and members; (ii) the protection of trade union leaders and members who are under threat; and (iii) the need for the Government, in consultation with the social partners, to submit a bill based on the comments of the Committee, as a matter of urgency, to the Congress of the Republic to bring the legislation into conformity with the Convention.

Finally, the Committee notes the report of the Special Representative of the Director-General in Guatemala, prepared at the request of the Conference Committee.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union officers and members, including numerous murders and the related situation of impunity. The Committee notes the Government’s indication that: (i) of these 70 cases of murder of trade union officers and members registered by the authorities, 13 have given rise to rulings (nine convictions and four acquittals), while 40 other cases are currently being examined by the judicial authorities; (ii) in the framework of the collaboration agreement between the Special Investigation Unit for Crimes against Trade Unionists and the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG), 12 cases of investigations of murders identified by the trade union movement in Guatemala were referred to the CICIG on 15 June 2015 so that it could issue recommendations on the conduct of the investigations; (iii) after consulting the social partners, the Public Prosecutor’s Office adopted General Instruction No. 1 2015 in February 2015 on the effective investigation and criminal prosecution of crimes against trade union members and officers of workers’ organizations and other defenders of labour and trade union rights; (iv) the Ministry of the Interior granted nine personal security measures and 63 security measures covering specific locations for trade union officers and members; and (v) the telephone number 1543 to make free calls to denounce acts of violence or threats against human rights defenders, including trade union members, has been operational since 14 May 2015.

The Committee notes that the Autonomous People’s Trade Union Movement of Guatemala and the global unions of Guatemala denounce the murder, on 24 September 2015, of Mynor Rolando Ramos Castillo, a member of the Jalapa Municipal Workers Union (SITRAMJ). The trade unions indicate that the murdered trade unionist was one of the municipal workers awaiting implementation of the reinstatement order issued by the labour court. The Committee also notes that the various trade unions which made observations to the Committee indicate that: (i) the great majority of the perpetrators and all instigators of the 74 murders of trade union officers and members denounced to the ILO are at freedom with impunity; and (ii) not all of the necessary risk assessments have been carried out, and many threats against trade union officers and members have not given rise to any action by the Public Prosecutor’s Office.

The Committee further notes that the report of the Special Representative of the Director-General in Guatemala indicates that: (i) at the request of the Public Prosecutor’s Office, the judicial authorities are preparing administrative agreements to establish specialized courts to examine crimes against trade unionists and penalties for non-compliance by public authorities and private employers who refuse to give effect to rulings relating to freedom of association, including reinstatement orders; and (ii) certain trade union leaders under protection have had to give up that protection, as they could not personally finance the fees of the security guards.

The Committee notes with deep concern the murder of Mynor Rolando Ramos Castillo, a member of the SITRAMJ. The Committee notes that SITRAMJ submitted a complaint, which was examined by the Committee on Freedom of Association, relating to a series of anti-union dismissals (Case No. 2978). Recalling that the absence of judgments against those guilty of crimes against trade union officers and members creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights, the Committee also expresses deep concern at the low number of convictions for the murders of trade union officers and members. While taking due note of certain measures adopted by the authorities to improve the effectiveness of the investigations into the murders of trade union officers and members and to provide effective protection for trade union officers and members who are under threat (particularly the adoption of Instruction No. 01-2015 of the Public Prosecutor’s Office and the establishment of the emergency telephone number), the Committee notes the tragic lack of progress in this area and firmly urges the Government to continue making every effort to: (i) investigate all acts of violence against trade union officers and members with a view to determining responsibilities and punishing the perpetrators, taking fully into consideration in the investigations the trade union activities of the victims; and (ii) provide prompt and effective protection for all trade union officers and members who are at risk. In particular, the Committee requests the Government to intensify its efforts to: (i) develop the collaboration initiated between the Public Prosecutor’s Office and the CICIG; (ii) establish special courts to deal more rapidly with crimes and offences committed against members of the trade union movement; and (iii) increase the budget for protection programmes for members of the trade union movement so that those who are protected do not have to personally finance any of the associated costs. The Committee requests the Government to continue providing information on all of the measures adopted and the results achieved in this regard.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that it has been asking the Government for many years to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which establishes the requirement for 50 per cent plus one of those working in the sector in order to be able to establish sectoral trade unions;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader; and
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes; section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been requesting the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that in the 2013 roadmap, the Government undertook to submit to the Tripartite Committee on International Labour Affairs the necessary draft legislative reforms and indicated that the National Congress would adopt the corresponding legislation.

The Committee notes from the Government’s report and from the observations of the social partners that: (i) in 2015, the Labour Commission of the Congress held two working meetings with the social partners to obtain their views on the reforms requested by the Committee; (ii) on 3 September 2015, workers’ organizations submitted to the Office of the Minister of Labour new draft reforms to the Labour Code, including the amendments requested by the Committee in relation to the Convention; (iii) the employers’ organizations considered it necessary to continue analysing the viability of the Committee’s recommendations and supported the need for a comprehensive legislative reform; and (iv) the Tripartite Committee on International Labour Affairs made a request on 24 September 2015 to the Representative of the Director-General of the ILO in Guatemala for the appointment of an expert to provide technical assistance to constituents in the process of legislative reform. While welcoming the request made to the ILO for technical assistance, the Committee recalls that it has been urging the Government for many years to take the necessary measures for the adoption of the legislative reforms referred to above. The Committee therefore expresses the firm hope that it will be able to note the adoption of these amendments in the Government’s next report.

Application of the Convention in practice

Registration of trade unions. As in previous years, the Committee notes the recurrent observations by trade unions concerning obstacles to the registration of trade unions. The Committee also notes that, within the framework of the complaint procedure for non-observance by Guatemala of the Convention made under article 26 of the Constitution of the ILO: (i) the ILO Governing Body included in June (GB.324/INS/4) and November (GB.325/INS/8) 2015 the unimpeded registration of trade union organizations by the Ministry of Labour and Social Welfare among the priority issues that continue to require further urgent action by the Government; (ii) the Government provided the Governing Body with the following statistics on the registration of trade unions since 2013: 52 applications for registration in 2013, resulting in the registration of 17 legal personalities; 35 applications in 2014, resulting in 19 registrations; and 56 applications in 2015, resulting in 30 registrations. The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in November 2015 in the context of Case No. 3042 relating to the refusal to register 57 trade unions. The Committee notes that the Committee on Freedom of Association, in addition to the legislative issues raised above in the observation (requirements for the establishment of sectoral trade unions, the exclusion of precarious state workers from the benefit of the right to freedom of association), noted: (i) the excessive duration and complexity of the registration process; (ii) the frequency with which the labour administration requests substantive changes to statutes, which affects trade union independence; and (iii) the excessively broad interpretation by the labour administration of the concept of workers in managerial positions and in positions of trust.

The Committee once again expresses deep concern at the obstacles to the registration of trade unions. The Committee therefore once again urges the Government to eliminate the various legislative obstacles to the freedom to establish trade unions, as indicated above, and, in consultation with the trade union confederations and employers’ organizations of the country, and with the support of the Special Representative of the Director-General in Guatemala, to revise the procedure for processing applications for registration with a view to adopting an approach in which any substantive problems and formal issues that arise can be resolved very rapidly with the founding members of the trade unions, and to facilitate as soon as possible the registration of trade unions. The Committee requests the Government to provide information on the initiatives taken and the results achieved in this regard.

Settlement of disputes relating to freedom of association and collective bargaining. The Committee welcomes the activities of the Conflict Resolution Committee on Freedom of Association and Collective Bargaining (hereinafter the Conflict Resolution Committee), established within the context of the roadmap with the support of the Special Representative of the Director-General of the ILO in Guatemala. The Committee notes the indication by the CACIF that 17 cases are being reviewed by the Conflict Resolution Committee, of which two are related to the private sector. With regard to the mediation concerning Case No. 3040 of the Committee on Freedom of Association, the CACIF indicates that the Conflict Resolution Committee has assessed very positively the progress made in resolving the violation of the right to freedom of association. The Committee trusts that the Conflict Resolution Committee will continue to be strengthened and will contribute to resolving the many cases of denunciations of violations of the Convention reported by trade unions.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee welcomes the launch in the official national media on 30 October 2015 of an awareness-raising campaign on freedom of association, the content of which was prepared with ILO support, and was agreed to by the tripartite partners. With a view to ensuring that the campaign reaches out broadly to the population, the Committee invites the Government to disseminate the campaign in the mass media in the country and to provide information on this subject.

Maquila sector. Noting the absence of information provided by the Government on the application of the Convention in the maquila (export processing) sector, the Committee once again requests the Government to: (i) intensify its efforts to guarantee and promote full compliance with trade union rights in this sector; (ii) give special attention to the maquila sector in the context of the awareness-raising campaign; and (iii) continue to provide information on the exercise in practice of trade union rights in this sector.

Finally, the Committee welcomes the ILO project financed by the Directorate-General for Trade of the European Commission to support beneficiary countries of the Generalized System of Preferences (GSP+) to implement effectively international labour standards, with Guatemala being one of the four countries targeted by the project.

Taking due note that a new Government will enter office in January 2016, the Committee trusts that the Government will take all the necessary measures to resolve the serious violations of the Convention noted by the ILO supervisory bodies and will take full advantage of the opportunity of the technical assistance provided to the country by the Office as well as of the resources available through international cooperation.

[The Government is asked to reply in detail to the present comments in 2016.]