Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Guatemala (Ratification: 1952)

The Committee notes the report made by the Government and Legislative Decree No. 35-96 on the Regulation of Strikes by State Workers. Similarly, the Committee notes the observations made by the Confederation of Trade Union Unity of Guatemala (CUSG) objecting to the provisions of the above decree.

The Committee recalls that in a previous direct request it referred to section 2(d) of the Regulation for the procedures of negotiation, official approval and rejection of collective agreements, dated 19 May 1994, which requires a draft collective agreement to be submitted to the General Labour Inspectorate together with the certification of the fact that the General Assembly of the trade union in question voted, by a majority of two-thirds of its total membership, to authorize those serving on its executive committee to conclude, approve and endorse, subject to a referendum or definitively, the draft agreement. In this respect, although it notes that the Government states that this provision has not caused difficulties for the negotiation of collective agreements on working conditions, the Committee considers that the required percentage is too high and that it could well obstruct the conclusion of collective agreements. The Committee considers that it is up to trade union organizations to stipulate in their rules the relevant requirements and that, in any event, the percentage of voters required by legislation should be limited to a simple majority. The Committee requests the Government to take measures to amend the regulations in question as indicated and to provide information in its next report on the measures adopted in this respect.

With regard to Legislative Decree No. 35-96 on the Regulation of Strikes by State Workers, the CUSG claims that the autonomy of the parties to collective bargaining is restricted under the provisions of section 2(a), which provides that bargaining in respect of collective agreements or Conventions shall take into account the legal possibilities of the general state income and expenditure budget. In this respect, the Committee considers that the wording of the provision does not appear in itself to be incompatible with the principles of collective bargaining. Notwithstanding, the Committee considers that in order to allow the parties freely to conclude an agreement, a mechanism should be established whereby, within the collective bargaining process in the public sector, trade union organizations and employers are adequately consulted so as to be able to express their points of view as soon as possible to the financial authorities, so that these authorities may take due account of them. Consequently, the Committee requests the Government to take the measures necessary to amend the legislation as indicated and to provide information in its next report on the measures adopted in this respect.

Finally, the Committee observes that in its communication, the CUSG criticizes inter alia the following provisions of the Legislative Decree referred to: (1) section 2(b) which provides that where proof of having exhausted direct means is not provided, there will be no follow-up to the settlement of the dispute in question, thereby obliging a judge ex officio to adopt the measures necessary for proving this state of affairs; and (2) section 2(c), second paragraph and c(1) relating to acts which do not constitute reprisals within a collective dispute (resignation of a worker, legal grounds for justified dismissal and the withdrawal of labour in essential services). The Committee considers that the provisions to which objections were raised do not violate the Convention.