Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the joint observations of the Guatemalan Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, and the observations of the International Trade Union Confederation (ITUC), received on 31 August and 1 September 2022 respectively, relating to matters examined in the present comment. The Committee also notes the Government’s replies to these observations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion which took place in June 2022 in the Conference Committee on the Application of Standards (Conference Committee) concerning the application of the Convention by Guatemala. The Committee observes that the Conference Committee, after deploring and deeply regretting the persistent acts of general violence and the violence against trade union leaders and members, including murders and physical aggression, and the culture of impunity that prevails in the country, called on the Government to take steps to: (i) investigate without delay all acts and threats of violence against trade union leaders and members with a view to identifying and understanding the root causes of violence, taking into account their trade union activities as a motive, determining responsibilities and punishing the perpetrators; (ii) provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes; (iii) eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners, resolve the handling of registration applications; (iv) ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay; (v) increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements; (vi) bring national legislation into conformity with the Convention, in consultation with the social partners; and (vii) redouble efforts to fully implement the road map adopted on 17 October 2013, in consultation with the social partners.

Lastly, the Committee invited the Government to avail itself of technical assistance from the Office to give full effect to these conclusions and asked it to submit a report on the application of the Convention to the Committee of Experts by 1 September 2022.

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

The Committee recalls that, pursuant to its decision of November 2018 (decision GB.334/INS/9) to close the procedure concerning the complaint alleging non-observance of the Convention by Guatemala made under article 26 of the ILO Constitution, the Governing Body asked the Office in November 2020 to report annually on the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” for its three-year duration (decision GB.340/INS/10).

During its October-November 2022 meeting, the Governing Body noted the joint mission of the ILO, the International Organisation of Employers (IOE) and the ITUC, undertaken in September 2022 to follow up on the technical cooperation provided by the ILO in relation to the implementation of the road map approved in 2013 by the Government, in order to discuss the matters raised in the complaint made under article 26 of the ILO Constitution. The Committee notes that the mission and the members of the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) jointly identified a series of priority actions to give new impetus to the implementation of the road map.

Trade union rights and civil liberties. The Committee notes with regret that since 2005 it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the situation of impunity in this respect. The Committee notes the information provided by the Government on the status of investigations and judicial proceedings relating to the murder of 97 members of the trade union movement, indicating that: (i) 29 verdicts have so far been handed down, comprising 22 convictions (in relation to 19 murders, with three cases resulting in two convictions each), six acquittals, and one security and correctional measure; (ii) seven cases have been assigned dates for public hearings and trials; (iii) in one new case, the final report was presented to the judicial authority by the Public Prosecutor’s Office; (iv) in three cases, trial proceedings are being opened; (v) criminal proceedings were dropped in seven cases in which the accused persons had died; and (vi) the other cases are still at the investigation stage. The Committee also notes the Government’s indication that: (i) given that several new cases now have dates for public hearings and trials, five new judgments are expected by the end of the first half of 2023; (ii) six cases involving the deaths of trade union leaders and members which occurred in 2020 have seen significant progress in terms of investigations and proceedings; and (iii) the Public Prosecutor’s Office has launched investigations into two cases of death threats against trade union leaders.

The Committee further notes the information provided by the Government on the security measures adopted for members of the trade union movement in situations of risk, namely: (i) personal security measures are in place for two union leaders; and (ii) of the 46 requests for protection for trade union members received by the Ministry of the Interior from 1 January to 27 July 2022, one has given rise to personal security measures, 39 have generated perimeter security measures, and six are in the analysis phase. The Government also refers to Ministerial Decision No. 288-2022 issued by the Interior Ministry, which reinstates the unit for the analysis of attacks against trade union leaders and members, a forum in which the Interior Ministry and the unions can exchange information on at-risk members of the trade union movement.

The Committee further notes the Government’s reference to a substantial increase in the budgets allocated to: (i) the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists, which increased from 543,960 to 1,288,252 US dollars (USD) in 2022; and (ii) the Personal Protection and Security Division at the Interior Ministry, which increased from USD 876,616 in 2020 to USD 1,239,120 in 2022. Lastly, the Government reports on the eight meetings held in 2022 by the CNTRLLS Subcommittee on the Implementation of the Road Map concerning the subject of anti-union violence.

The Committee also notes with deep concern the observations of the national and international trade union organizations denouncing: (i) the murder on 8 August 2022 of Hugo Eduardo Gamero Gonzalez, Disputes Secretary of the Santo Tomás de Castilla National Port Enterprise Workers’ Union (SINEPORC); (ii) the perpetration of numerous other acts of anti-union violence such as death threats; (iii) the persistence of the situation of impunity; and (iv) the inadequate protection measures provided by the public authorities.

While noting the Government’s replies regarding the investigations into these acts, the Committee once again recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected.

In light of the foregoing, while duly noting the continuing actions by the Government, the results reported and the difficulty involved in clearing up long-standing murder cases, the Committee once again expresses its deep concern at the allegations of a new case of murder and other acts of anti-union violence committed in 2022 and the persistence of a high degree of impunity. Indeed, the Committee notes with regret that the vast majority of the many murders of trade unionists recorded have still not resulted in convictions and that there is still no specific information on identification and punishment of the instigators of these crimes. While duly noting the significant increase in the budget allocated to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists reported by the Government, the Committee once again urges the Government to continue taking and intensifying as a matter of urgency all necessary measures to: (i) investigate all acts of violence against trade union leaders and members, with the aim of determining responsibility and punishing both the perpetrators and instigators of these acts, taking the victims’ trade union activities fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members in situations of risk so as to prevent any further acts of anti-union violence. The Committee requests the Government to continue providing all relevant information in this respect.

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to:

• -amend 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 sectoral trade union;
• -amend 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;
• -amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -amend 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;
• -amend 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; and
• -ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that in its previous comments it noted: (i) the tripartite agreement concluded in March 2018 on the amendments sought in four of the six points indicated above (relating to the requirements for election as a trade union leader, compulsory arbitration in non-essential services and other obstacles to the right to strike, penalties applicable in the event of a strike established by various legislative provisions, and the application of the guarantees of the Convention to various categories of public sector workers); and the immediate submission of this agreement to the National Congress; (ii) the tripartite agreement concluded in August 2018 on the principles that should guide reforms on the requirements for the establishment and operation of sectoral unions and on the conditions for strike ballots.

In its comments further to the closure by the Governing Body of the complaint made under article 26 of the ILO Constitution, the Committee expressed deep concern at the lack of progress on legislative reforms, noting with regret, firstly, that the content of the tripartite agreement of March 2018 had still not been incorporated in the legislation and, secondly, that no progress had been made on work to revise the legislation relating to aspects covered by the agreement on principles of August 2018. With regard to this last point, the Committee had previously noted with concern the indications by the trade unions that the combination of (i) the fact that it is impossible to create sectoral unions as a result of the requirements of section 215(c), and (ii) the fact that it is impossible in small enterprises, which account for almost all companies in Guatemala, to assemble the 20 workers required by section 216 of the Labour Code for the establishment of a union, meant that the vast majority of workers in the country did not have access to the right to join a union.

The Committee notes the Government’s reference to two tripartite meetings held in 2021 and one held in July 2022 to incorporate the agreements reached in March 2018 into a Bill without there having been the necessary input from the workers to move ahead with the tripartite discussion process. The Committee also notes that the national trade union federations claim that it is impossible to move forward on the legislative reforms requested by the Committee owing to the unwillingness of the Ministry of Labour and Social Welfare (Ministry of Labour) to impinge on the different political groups represented in the National Congress, and because of this the tripartite consensus achieved has lost its way in the legislative body.

The Committee also notes the following points that emerge from the discussion in the Governing Body in November 2022 that: (i) on 21 September 2022, in the presence of the ILO-IOE-ITUC joint mission, the Subcommittee on Legislation with the extended bureau of the CNTRLLS endorsed the texts approved in March 2018 and agreed that the executive authority would submit a Bill to Congress in the very near future; (ii) by a letter of 27 October 2022, the President of the Republic brought a Bill before the National Congress containing the texts which had received tripartite approval in March 2018 and September 2022; and (iii) the priority actions identified by the mission in conjunction with the CNTRLLS provide for: lobbying by the national tripartite constituents with a view to the adoption of the aforementioned Bill; bipartite and tripartite discussions facilitated by the Office to have a consensual text for proposed reforms on sectoral trade unions and the conditions for strike ballots ready for the Governing Body session of November 2023. Encouraged by the specific actions agreed upon during the ILO-IOE-ITUC joint mission, the Committee firmly hopes that the Government will very soon be in a position to report both the adoption of the Bill brought before the National Congress on 27 October 2022 and tangible progress in the revision of the legislation relating to sectoral trade unions and the conditions for strike ballots.

Application of the Convention in practice

Registration of trade unions. The Committee notes the Government’s indication that: (i) in the whole of 2021, the Ministry of Labour registered 57 trade unions, out of 58 applications received; (ii) from 1 January to 15 August 2022, a total of 17 trade unions were registered, out of 18 applications received; and (iii) steps have been taken to contract a notifying officer to accelerate registration formalities, and assistance has been sought from the Ministry of Labour of Argentina to share good practices in this respect. The Committee also notes the observations of the trade union federations, which claim that: (i) arbitrary practices and the imposition of inappropriate formalities by the Ministry of Labour persist; (ii) the Ministry of Labour reportedly gives 48 hours to employers to bring legal action against any publication of the registration of a trade union in the Official Journal. The Committee notes the Government’s indication regarding this latter point that, under the case law of the Constitutional Court, the Ministry of Labour has the obligation to examine claims presented to it, including those relating to the registration of unions. Lastly, the Committee notes that the priority actions identified by the ILO-IOE-ITUC joint mission include the implementation, with support from the Office, of software for the registration of trade unions. In light of the foregoing, the Committee requests the Government to continue providing statistical information on registration applications and actual trade union registrations. It further requests the Government to specify whether the legislation requires the labour administration to inform the employer when it receives a request for registration by a trade union and to indicate the number of challenges against registration brought by employers, the duration of their examination and the decisions taken for their resolution.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee notes the Government’s reference to the meeting of the Subcommittee on the Implementation of the Road Map held on 2 August 2022 at which: (i) the Subcommittee gave its approval to the communication models submitted by the ILO; and (ii) the Ministry of Labour indicated that it had set aside funds to display posters in the municipalities most affected by disputes in the country. The Committee also notes the Government’s indication that the national trade union federations, for their part, criticize the lack of any progress in this respect. Lastly, the Committee notes that, in the context of the priority actions identified by the ILO-IOE-ITUC joint mission and the CNTRLLS, the following possibilities were raised: (i) that the Government might launch a similar initiative on freedom of association to the one recently implemented by the Ministry of Labour with a campaign on the prevention of child labour; (ii) that the Coordinating Committee for Agricultural, Commercial, Industrial and Financial Associations, in connection with the human rights policy developed by the employers, might devise and disseminate awareness-raising and information materials among its members on the employers’ role regarding the exercise of freedom of association; and (iii) that the campaign might include promoting good practices with respect to collective labour relations (for example, through an annual award from the CNTRLLS). In light of the foregoing, the Committee expresses the firm hope that the Government will be in a position in the very near future to report specific progress on the implementation of the awareness-raising campaign.

While expressing its concern at the persistence in law and practice of serious violations of the Convention, the Committee welcomes the fresh impetus given to the implementation of the road map through priority actions identified by the ILO-IOE-ITUC joint mission and by the members of the CNTRLLS. The Committee emphasizes that it is vitally important that the expectations generated by the identification of such actions translate into tangible progress in the application of the Convention within the specified time frames. The Committee requests the Government to provide information on the various points highlighted in the present comment.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2023.]