Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on the same date. The Committee notes that these observations refer to matters examined in the present comment and to complaints of violations in practice regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), both received on 1 September 2018, which refer to matters examined by the Committee in the present comment.

Lastly, the Committee notes the Government’s replies to the 2017 observations of the ITUC, Autonomous Popular Trade Union Movement and the Global Unions of Guatemala. Those replies were taken into consideration by the Committee in the examination of various matters raised in this Observation.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

The Committee notes that, at its 334th Session (October–November 2018), in view of the report of the Tripartite Mission which visited Guatemala from 26 to 29 September 2018, taking note, firstly, of the significant contribution of the Tripartite National Committee on Labour Relations and Freedom of Association towards a more mature and constructive social dialogue and of the agreement reached by the national tripartite constituents on the principles that should guide legislative reform aimed at ensuring conformity with ILO Conventions Nos 87 and 98; and, secondly, of the need to provide continuity to the measures adopted to ensure that the positive social dialogue process leads to a comprehensive, effective and sustainable implementation of the roadmap; and, in the light of the progress made and the issues that remain pending, the Governing Body: (i) declared closed the procedure under article 26 of the ILO Constitution concerning the abovementioned complaint; (ii) firmly called on the Government, the Guatemalan social partners and the other relevant public authorities, with the support of the IOE and the ITUC, and the technical assistance of the Office, to elaborate and adopt legislative reforms that fully comply with point 5 of the roadmap; (iii) firmly called on the Government to, together with the Guatemalan social partners, and with the technical assistance of the Office, continue to devote all the efforts and resources necessary to achieve a sustained and comprehensive implementation of the other aspects of the roadmap; (iv) established that, in line with the National Tripartite Agreement of November 2017, the Government of Guatemala shall report on the further action taken at the Governing Body sessions of October–November 2019 and October–November 2020; (v) requested the Office to implement without delay a robust and comprehensive technical assistance programme to ensure the sustainability of the current social dialogue process as well as further progress in the implementation of the roadmap; and (vi) encouraged the international community to contribute to this technical assistance programme by providing the necessary resources.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years it has been examining, in the same way as the Committee on Freedom of Association, allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes the information provided by the Government, both in its report on the application of the present Convention and in its reports of September and October 2018 to the Tripartite Mission and the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution. The Committee notes firstly that, in relation to 90 cases of deaths of trade union leaders and members, registered since 2004, the Government indicates that: (i) 17 convictions were handed down in relation to 15 cases (two cases involved two rulings each); (ii) four cases ended up with acquittals rulings; (iii) one case gave rise to a judicial sentence of security and corrective measures; (iv) criminal proceedings were dropped in six cases as a result of the death of the suspects; (v) one case was under judicial review; (vi) proceedings were at an intermediate stage in three cases; (vii) pending arrest warrants had been issued in six cases; and (viii) 54 cases were at the investigation stage. The Committee also notes the Government’s indication that: (i) since 2011, the Public Prosecutor’s Special Investigation Unit for Crimes against Trade Unionists has been substantially strengthened; (ii) the number of rulings handed down with respect to the deaths of trade union members has been much higher since the creation of the Special Unit; (iii) while several sentences relating to deaths of trade unionists handed down in recent years have been through the high-risk courts (specialized courts), the procedural burdens experienced in those courts is such that the referral to them of pending cases of trade unionist murders is not always the best option for ensuring prompt treatment of these cases in the courts; (iv) the application of Directive No. 1-2015 of the Public Prosecutor’s Office facilitates the establishment of a possible link between the homicides and the trade union activity of the victims, and helps speed up investigations, as shown by the rapid identification of suspects in the case of the murders of Ms Brenda Marleni Estrada Tambito (assassinated in 2016) and Mr Tomas Francisco Ochoa Salazar (assassinated in 2017); (v) between August 2017 and May 2018, 17 meetings took place between the Special Investigation Unit and the Criminal Investigation Division of the National Civil Police (DEIC) with a view to analysing the various criminal acts, taking into account their trade union context; (vi) collaboration between the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) is ongoing with respect to 12 homicides selected by the trade union movement, which has given way to an adequate transfer of investigative capacities for this type of crime; (vii) there is an ongoing willingness of the Public Prosecutor’s Office to continue to exchange information with the trade union movement, whether through maintaining the Trade Union Committee or through other means, and (viii) the subcommittee for follow-up to the roadmap, which is part of the new National Tripartite Committee on Labour Relations and Freedom of Association contributes to an effective tripartite monitoring of the investigation into the deaths of trade unionists.

The Committee also notes the information provided by the Government on the protection measures afforded to members of the trade union movement who would be in a situation of risk, in which it indicates that: (i) all requests for security measures from trade unionists received by the Ministry of the Interior result in risk assessments; (ii) on the basis of those assessments, between January and July 2018, 59 perimeter security measures and one personal security measure were authorized; (iii) currently, four trade union leaders have personal security measures placed on them; (iv) the Protocol for the Implementation of Immediate and Preventive Security Measures in favour of Unionized Workers, Officers, and Trade Union Leaders, including those who advocate for the defence of labour rights, the content of which had been agreed with the trade unions, continues to apply; (v) the Department for the Assessment of Assaults on Human Rights Defenders, in which trade unions may participate, continues to operate; and (vi) the 24-hour emergency hotline to report cases of violence and threats against trade union leaders and members continues to operate.

The Committee notes, however, that the ITUC in its observations, and the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, in their observations on the application of the Convention and their reports of September and October 2018 to the tripartite mission and the Governing Body in the context of its complaint made under article 26 of the ILO Constitution, report: (i) the persistent impunity regarding the acts of violence committed against human rights defenders in general and trade unionists in particular; (ii) the lack of serious investigations by the Public Prosecutor’s Office and, especially, the ongoing failure to take account of the trade union activities of the victims when investigating the motives for the murders; (iii) the subsequent lack of tangible progress with regard to the investigation of murders of trade unionists and the securing of convictions for the perpetrators, especially those cases identified as a priority by the Committee on Freedom of Association in the context of Case No. 2609 (see 382nd Report, June 2017, paragraph 339); (iv) the actions of the Government and the National Congress to put an end to the CICIG in the country even though its specific engagement is needed in the investigation of murders of trade unionists as, in many of those cases, there is significant evidence of the participation of organized groups; (v) the significant deterioration, since the establishment of the new Ministry of the Interior in January 2018, of the security measures afforded by the authorities to human rights defenders in general and trade unionists in particular; (vi) the non-renewal in 2018 of the Standing Trade Union Technical Committee on Comprehensive Protection of the Ministry of the Interior; and (vii) the weakening of the Department for the Assessment of Assaults on Human Rights Defenders of the Ministry of the Interior owing to the constant turnover of governmental workers at the head of this department.

The Committee also notes with deep concern that the abovementioned trade union organizations specifically report: (i) the murder on 29 April 2018 of Alejandro García Felipe, general secretary of the local branch of the National Trade Union of Health Workers of Guatemala (SNTSG) Santa Rosa department; (ii) the murder, between 15 and 20 June 2018, of Domingo Nach Hernández, general secretary of the workers’ union of the Villa Canales municipality ; (iii) the murder, on 21 June 2018, of Juan Carlos Chavarría Cruz, general secretary of the Workers’ Union of the Melchor de Mencos municipality, Petén; (iv) the murder of David Figueroa García, chairman of the Executive Board of the Workers’ Union of San Carlos of Guatemala University, whose headquarters are in Petén, in June 2018; and (v) the murder of Juana Raymundo, a SNTSG member, on 29 July 2018. The trade union organizations add that in the first three cases, there are specific records and evidence indicating the possible anti-union nature of the murders and that, in two cases, the victims had previously requested security measures from the Ministry of the Interior, which were not granted.

While duly noting the continuing efforts of the Government and the difficulty involved in shedding light on the oldest cases of murder being examined, the Committee expresses its deep concern about the allegation of five new murders of members of the trade union movement in recent months and about the high level of impunity that prevails in relation to the allegations of numerous murders and acts of anti-union violence reported in recent years. The Committee also notes the announcement that the mandate of the CICIG will expire in September 2019. In the same way as the Committee on Freedom of Association, the Committee is of the view that, in the light of the scale and magnitude of the aforementioned challenges, together with the willingness expressed by the tripartite constituents through the establishment of the National Tripartite Committee on Labour Relations and Freedom of Association, ambitious measures to strengthen and carry out the national policy for combating anti-union violence and impunity are necessary and timely.

In light of the above, the Committee once again urges the Government, in order to give full effect to the Convention and the decision of the Governing Body of November 2018, without further delay continue taking and intensify as a matter of urgency all necessary measures to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. With regard to the specific action required to achieve those objectives, the Committee refers to the recommendations issued by the Committee on Freedom of Association in the context of Case No. 2609 (see 387th Report of the Committee, October–November 2018, paragraph 410). The Committee requests the Government to provide detailed information in this respect.

Legislative issues

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

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union (in this respect, the Committee notes with concern the trade unions’ indication that the combination of the impossibility of establishing sector trade unions under the requirements of section 215(c) and the impossibility, in small enterprises, which represent almost all Guatemalan companies, to meet the requirement under the Labour Code, of 20 workers for the establishment of a trade union, results in the inability for most of the country’s workers to exercise the right to join a trade union, a situation which is reflected in the overall rate of trade union membership which stands at 1.5 per cent);
• -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;
• -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 asking 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.

In its previous comments, the Committee observed with interest that the tripartite agreement signed in November 2017 provided for the presentation to the National Congress by March 2018, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention, and that the agreement referred to various specific matters raised by the Committee. The Committee notes that, according to the information provided by the Government and the social partners, in February 2018, the tripartite constituents, with a view to ensuring full compliance with the Convention of consolidated texts, agreed on: (i) the revision of sections 390(2) and 430 of the Penal Code; (ii) the revision of provisions of Decree No. 71-86 relating to the list of essential services; and (iii) the recognition of the trade union rights of public sector workers under short term and special regime contracts. The Committee also notes that, under an agreement signed on 28 August 2018, the national tripartite constituents agreed on a series of principles on which future legislation should be based relating to the establishment of sector trade unions and their right to collective bargaining as well as strike votes and their repercussions. While noting that the draft law referred to in the November 2017 agreement has still not been submitted, the Committee notes with interest the agreements concluded in February and August 2018. The Committee trusts that, in conformity with the November 2018 decision of the Governing Body and with the active participation of the social partners, the Government will soon be in a position to report the adoption, requested for many years, of legislation which fully complies with the obligations contained in the Convention. The Committee requests the Government to provide information on the developments in this regard, including a copy of the legislation.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee requested the Government to pursue more in depth dialogue with the trade unions on the revision and acceleration of the trade union registration process. The Committee expressed in its last comment the hope that the tripartite agreement of November 2017 would give fresh impetus to that dialogue. According to the information provided in the Government’s report and in its reports addressed to the September 2018 Tripartite Mission and the Governing Body: (i) 29 trade unions (16 from the public sector and 13 from the private sector) were registered between January and 21 September 2018; (ii) in the past three years, an average of 20 petitions have been filed; (iii) the registration process with the Ministry takes an average of three to five months; and (iv) in 2018, trade unions including workers with fixed-term contracts were registered for the first time in the Ministry register, as well as trade union associations (domestic workers’ unions and footballers’ unions). The Committee also notes, however, that in its observations within the framework of this Convention and in its report to the Tripartite Mission, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala state that the trade unions continue to face unjustified obstacles to registration and that under the previous Minister of Labour and Social Security, additional requirements were unilaterally introduced for registration, which should be withdrawn. While taking due note of the information provided by the Ministry of Labour and, particularly, the registration of trade union associations, the Committee once again requests the Government to pursue in-depth and targeted dialogue with the trade unions to revise and accelerate the trade union registration process. The Committee requests the Government to provide information on all progress made in this respect and reminds it that it may avail itself of the technical assistance of the Office.

Settlement of disputes relating to freedom of association and collective bargaining. The Committee takes due note that: (i) established under the National Tripartite Committee, is the Subcommittee for Dispute Mediation and Settlement, which has replaced the Committee for the Settlement of Disputes before the ILO, in operation between 2015 and 2017; (ii) the Subcommittee’s rules of procedure are to be adopted, while the appointment of its independent mediator is pending. Noting the high number of disputes brought before the ILO and recalling its comments made in this respect within its 2017 observation on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee encourages the Government and the social partners to devote the necessary efforts to ensure that the new subcommittee can, in the very near future, help to strengthen implementation of the Conventions concerning freedom of association and collective bargaining ratified by Guatemala. The Committee recalls once again that the Government may continue to rely on the Office’s technical assistance in this respect.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, the Committee urged the Government, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media. The Committee notes the Government’s indication that: (i) the signing of the November 2017 tripartite agreement and the start-up of the National Tripartite Committee have resulted in a wider coverage by the mass media; (ii) the awareness-raising campaign is ongoing, particularly through the social networks of the Government, the Diario de Centroamérica (the official Guatemalan daily newspaper) and the Guatemalan radio station TWG; (iii) on the occasion of the ILO centenary, four conferences will be held on social dialogue and freedom of association, in cooperation with the country’s three main universities; and (iv) the National Tripartite Committee should function as a catalyst by means of which the tripartite constituents will be able to carry out joint initiatives to raise awareness of freedom of association and collective bargaining. The Committee also notes that, within the framework of the Tripartite Mission, the trade unions stated that the actions to launch the awareness-raising campaign had not been satisfactory and that, because of limited budgetary resources of the Ministry of Labour and Social Security, the Government should, under the authority of the President, collect funds to finance the campaign. The Committee notes, lastly, that, within the framework of the above-mentioned Mission, the CACIF: (i) agreed on the need to collect funds but highlighted the challenge that this posed; and (ii) indicated that, through the National Tripartite Committee, the tripartite constituents could publish joint statements on topics of interest, such as collective bargaining in the public sector. Noting that both the implementation of the decision of the November 2018 Governing Body and the institutionalization of the National Tripartite Committee constitute conducive contexts in this respect, the Committee once again urges the Government, in collaboration with the social partners, to take the necessary steps to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given substantive visibility in the national mass media. The Committee requests the Government to provide information on any progress made in this respect.

The Committee trusts that, in the context of the implementation of the decision of the November 2018 Governing Body and the institutionalization of the National Tripartite Committee on Labour Relations and Freedom of Association, the Government, with the participation of the social partners and the technical assistance of the Office, will take the necessary measures to remedy, in the near future, the serious violations of the Convention noted for many years by the Committee.

[The Committee requests the Government to reply in full to the present comments in 2019.]