Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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 2019. The Committee notes that these observations refer to matters examined in the present comment and also to reports of violations of the Convention in practice, regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), supported by the International Organisation of Employers (IOE), received on 1 September 2019, referring to matters examined by the Committee in the present comment.

Lastly, the Committee notes the Government’s replies to the observations made in 2018 by the ITUC, the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala. These replies were taken into consideration by the Committee in its examination of the various issues raised in the present comment.

Follow-up to the decision adopted by the Governing Body at its 334th Session concerning the closure of the complaint submitted under article 26 of the ILO Constitution alleging non-observance of the Convention

The Committee notes the discussions which took place during the 337th Session (October–November 2019) of the Governing Body concerning additional measures taken to ensure a sustained and comprehensive implementation of the road map adopted in October 2013 as part of the follow-up to the complaint submitted in 2012 under article 26 of the ILO Constitution alleging non-observance of the Convention.

The Committee notes that the Governing Body decided, in accordance with what was established at its November 2018 session, that a second discussion of this matter will be held in November 2020. The Committee also notes the indication given during the exchanges in the Governing Body that a technical cooperation project drawn up by the Office in consultation with the national tripartite constituents to support the full implementation of the road map will be submitted shortly to the international donors.

Trade union rights and civil liberties

The Committee notes with regret that since 2005 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 in its report on the application of the present Convention and also the information contained in the reports presented to the Governing Body in September 2019 by the Government, on the one hand, and by the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, on the other. The Committee also notes that the Committee on Freedom of Association, at its October–November 2019 session, examined Case No. 2609, which groups together the complaints of acts of anti-union violence, including 90 murders of members of the trade union movement recorded between 2004 and 2018 (see Case No. 2609, 391st Report of the Committee on Freedom of Association, paragraphs 270–302).

Referring to the examination of the above-mentioned case by the Committee on Freedom of Association for a detailed analysis of the situation of anti-union violence in the country, and of the action taken by the public authorities in this regard, the Committee highlights that: (i) since its last comment, the perpetrators of two murders committed in 2017 and 2018 were convicted in July 2019, the Government indicating that one of the murders took place in the context of numerous administrative and judicial proceedings for the non-observance of labour and trade union legislation; (ii) however, the vast majority of the 90 reported murders of members of the trade union movement remain unpunished, since only 20 convictions relating to 18 murders have been handed down so far; (iii) the Government continues to provide information on the institutional efforts made to elucidate all the above-mentioned murders and impose the appropriate penalties, as well as on other acts of anti-union violence, emphasizing in this regard the importance of the Special Investigation Unit at the Public Prosecutor’s Office and of the tripartite Subcommittee on Follow-Up to the Roadmap; (iv) the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala claim that there has been a regression in the protection policy implemented by the Ministry of the Interior; and (v) while the Government continues to provide information on the protection measures granted to members of the trade union movement, the Committee notes that these measures continue to be perimeter protection measures and not personal protection measures, with the exception of two cases in 2018 and 2019, and that the requests for protection made by members of the trade union movement have decreased significantly in 2019.

The Committee also notes with deep concern that the ITUC denounces in its observations the murder on 24 November 2018 of another member of the trade union movement, Mr Edras Ezequiel De La Rosa Morales, leader of the Union of Secondary-Level Distance Education Workers of Santa Rosa (SINTRAT-SR). The ITUC states that although the motives for the crime are unknown, the victim was a recognized leader of the above-mentioned union who was deeply involved in fighting for the observance of labour rights in the public education sector. The Committee also notes that the ITUC reports: (i) the attempted murder of Mr Joviel Acevedo Esteban, leader of the Education Workers’ Union of Guatemala (STEG), and of Mr Hermelindo Cux, from the Committee for Rural Worker Unity; and (ii) the alleged intimidation, on 9 August 2018, of Ms Mirna Nij, general secretary of the Women’s Trade Union Federation of Guatemala. Recalling that trade union rights can only be exercised in a climate free of violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected, the Committee requests the Government to provide information on these individual allegations and to ensure that all appropriate protection measures are granted to persons who have been subjected to threats and intimidation.

In view of the above, while duly noting the action still being taken by the Government, the results reported and the difficulty involved in resolving the oldest murder cases, the Committee can only express its deep concern at the persistence of a high level of impunity, and at the reports of new acts of anti-union violence. The Committee therefore once again urges the Government to take and intensify, as a matter of urgency, all the necessary measures: (i) to 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) to 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 made by the Committee on Freedom of Association in the context of Case No. 2609.

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 its previous comment, the Committee noted 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 account for almost all Guatemalan companies, to meet the Labour Code requirement of 20 workers for the establishment of a trade union, meant that most of the country’s workers were unable to exercise the right to join a trade union);
• -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 eligible for election 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.

The Committee also recalls that for many years it has been asking the Government to take measures to ensure that various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous comment, the Committee noted with interest the tripartite agreements concluded in February and August 2018 relating to various aspects of the reforms needed to bring the legislation into line with the Convention. The Committee expressed the hope that, on the basis of the above, the Government would 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 notes that the Government recalls that: (i) it previously submitted Bill No. 5199 with the purpose of bringing the legislation into line with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and (ii) it asked the President of the National Congress Working Committee to defer the discussion in plenary of the Congress of Bill No. 5199 in order to facilitate a tripartite consensus on the above-mentioned reforms; consequently, since August 2017, the National Congress has been awaiting the consensus of the social partners. The Government adds that during the meeting of July 2019 of the National Tripartite Committee, on the basis of the agreements reached in February and August 2018, the Ministry of Labour underlined the importance of adopting a timeframe for addressing legislative matters that were awaiting a tripartite agreement (industry trade unions and some aspects of the laws regarding strikes).

The Committee notes that the CACIF reiterates its commitment to the implementation of the road map and its legislative reform component. While supporting the stance adopted by the Employers’ group in the various ILO bodies, maintaining that the right to strike is neither contained in nor derived from any ILO Convention, the CACIF indicates its continued willingness to work on a tripartite basis to adopt a reform proposal that satisfies national interests in the matter.

The Committee also notes that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala stated in their report submitted during the discussion at the 337th Session of the Governing Body that in the last year no progress has been made on the legal reforms contained in the road map and specifically that: (i) the initiatives put forward in the National Tripartite Committee, including by ILO officials, were met with lack of interest on the part of the employers and the Government; and (ii) as a result, it is still not accepted that individuals have the right to organize in sector or industry trade unions, or that foreign citizens have the right to freedom of association or that the persons directly concerned can take the decision to go on strike.

The Committee notes with regret that it can be seen from the above that since its last comments no real progress has been made on the drafting or adoption of legislation that would bring the existing laws into line with the Convention. Emphasizing the importance of the tripartite agreements reached in 2018 and the need to finally resolve the major discrepancies identified for decades between the legislation and the Convention, the Committee trusts that the tripartite constituents will resume the dialogue on the still pending issues in the very near future. The Committee urges the Government to take the necessary steps, taking account of the outcome of the above-mentioned dialogue, to adopt legislation that fully complies with the Convention. The Committee firmly hopes that the Government’s next report will contain indications of major progress.

Application of the Convention in practice

Registration of trade unions. In its previous comments, having made special note of the registration of trade unions, the Committee asked the Government to intensify the dialogue with the trade unions on revising and accelerating the trade union registration procedure. The Committee notes the Government’s indication that, further to the recommendations made by the Committee on Freedom of Association in October 2015 in the context of Case No. 3042, there are no obstacles to the free registration of trade union organizations. Specifically, the Government states that: (i) from the total of 36 applications for registration received in 2018, 34 trade unions were registered (20 in the public sector and 14 in the private sector); (ii) from the total of six applications received between 1 January and 29 April 2019, six trade unions were registered (five in the public sector and one in the private sector); (iii) it has prepared and disseminated a “trade union information pack”, after presenting this “pack” at a tripartite meeting in December 2018, in order to provide effective information to workers who wish to establish a trade union; and (iv) in May 2019, an invitation was issued to the workers’ sector to participate in talks on the process of establishing trade unions. Lastly, the Government adds that it would be important to know precisely if there are specific cases of trade unions in the process of being established which are facing any difficulties regarding their registration.

The Committee also notes, however, that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, in their report to the Governing Body in September 2019, state that: (i) Guatemala remains the Latin American country with the lowest rate of trade union membership (1.5 per cent); (ii) according to the figures supplied by the Government itself in its report to the Governing Body, there has been a significant decrease in new trade union registrations in 2018 and 2019 compared with previous years; (iii) there is a notable contrast between the number of unions registered in 2019 and the much higher number of registration applications made in the same year; and (iv) the above information illustrates the fact that the Ministry of Labour maintains the practice of imposing registration requirements which are complex and legally dubious. Noting the divergent views of the Government and the trade unions in this regard, the Committee once again invites the Government and the trade unions to take major steps forward in their dialogue on accelerating the process of trade union registration. The Committee requests the Government to provide information on all progress made in this respect and reminds it once again that it may avail itself of technical assistance from the Office.

Settlement of disputes relating to freedom of association and collective bargaining. With regard to the functioning of the Mediation and Dispute Settlement Subcommittee of the National Tripartite Committee, the Committee refers to its observations on the application of Convention No. 98.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, after noting a series of initiatives that had been taken or envisaged, 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, provided for in the 2013 road map, was given real visibility in the national mass media. The Committee notes that the Government has made no further reference to the implementation of the awareness-raising campaign through the social networks of the Government, the Diario de Centroamérica (the official government newspaper in Guatemala) and a national radio station, and that the Government merely indicates that it submitted two draft press releases on the observance of Conventions Nos 87 and 98 to the National Tripartite Committee. The Government states that it is still awaiting the observations of the trade unions on these proposed press releases. The Committee also notes that the Guatemalan trade union federations, in their September 2019 report to the Governing Body, claim that no progress has been made in the implementation of awareness-raising and dissemination campaigns relating to freedom of association.

The Committee notes with regret that since its last comment no significant progress has been made in the implementation of the awareness-raising campaign on freedom of association and collective bargaining. Emphasizing the major contribution that the National Tripartite Committee and its tripartite members should make in this respect and the responsibility that ultimately lies with the Government for ensuring that the commitments made in the road map are effectively implemented, the Committee once again urges the Government to take the necessary steps, 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 hopes that, in the context of the implementation of the decision taken at the November 2018 session of the Governing Body, the Government will take the necessary measures, with the participation of the social partners in the National Tripartite Committee on Labour Relations and Freedom of Association and with the technical assistance from the Office, to remedy in the very near future the serious violations of the Convention noted for many years by the Committee.