Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

The Committee notes the information supplied by the Government representative at the Conference Committee in 1993 and the discussions held in the same Committee.

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which addressed the following issues:

The Committee regrets to note that the amendments to sections 223(b) and 241(c) of the Labour Code do not take account of the Committee's comments and that sections 211(a) and (b), 222(f) and (m), 243(a) and 249, 255 and 257 of the Code have not yet been amended. The Committee wishes to recall the following provisions of the legislation which are still at variance with the Convention: -- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Code); -- the requirement of Guatemalan nationality in order to form trade unions or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b)); -- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike; -- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249); -- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249); -- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255); -- the detention and trial of persons in breach of the provisions of Title VII of the Code (section 257); -- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390(2) of the Penal Code). Furthermore, the Committee observes that new paragraph "d" of section 220 of the Code requires a sworn statement from members of the interim executive committee of a trade union to the effect that, amongst other things, they have no criminal record and are active workers in the enterprise or on their own account; in addition, section 223(b) establishes, amongst other requirements for membership of the executive committee, that candidates must be active workers at the time of election and that at least three of them must know how to read and write. With regard to the requirement that members must have no criminal record, the Committee considers that a conviction on account of activities the nature of which is not such as to call into question the integrity of the person concerned, and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 120). With regard to the requirement that members must be active workers in the enterprise, in the opinion of the Committee, provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. They may also deprive unions of the benefit of the experience of certain officers, particularly when they are unable to provide enough qualified persons from their own ranks (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 117); especially if at least three of them are required to know how to read and write, as prescribed by the above-mentioned legislation. The Committee therefore requests the Government to take the necessary measures to make the legislation more flexible by exempting a reasonable proportion of the officers of an organization from the obligation of being employed in the enterprise. The Committee again hopes that the Government will pursue its efforts to bring all its legislation into line with the requirements of the Convention, thereby accommodating the comments that the Committee has been making for many years. The Committee asks the Government to provide information in its next report on the measures adopted to give full effect to the Convention.