Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

The Committee regrets to note that the Government’s report has not been received. Nevertheless, the Committee notes the discussions held in the Conference Committee on the Application of Standards in June 2000, as well as a previous report received from the Government in May 2000.

In the first place, the Committee notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1970 in which it noted with deep concern the large number of acts of violence against trade union officials and members which have been alleged, including numerous murders and death threats (see the 323rd Report of the Committee on Freedom of Association, paragraph 284(a)). In this respect, the Committee shares the opinion expressed by the Committee on Freedom of Association that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety are fully respected and guaranteed (see ibid.).

The Committee recalls that for many years it has been criticizing the following provisions of the legislation:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that at least three members of the executive committee are able to read and write (sections 220(d) and 223(b));

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249);

-  the possibility of calling on the national police to ensure continuity of work in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-  the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-  the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential in the strict sense of the term, in particular public transport and services related to the supply of fuel, and the prohibition of inter-union sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee notes with interest that the President of the Republic has transmitted for adoption to Congress a Bill to amend or repeal some of the above provisions:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement that at least three members of the executive committee of a trade union be able to read and write (sections 222(d) and 223(b) of the Labour Code);

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record (section 220(d) of the Labour Code);

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c) of the Labour Code) and of the members of a trade union (section 222(f) and (m) of the Labour Code) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249 of the Labour Code), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249 of the Labour Code) (nevertheless, the Bill continues to prohibit strikes in other services which are not essential in the strict sense of the term, such as various types of transport and the fuel sector);

-  the possibility of calling in the national police to ensure the continuity of work in the event of an unlawful strike (section 255 of the Labour Code), even where there is no breach of the peace.

The Committee expresses once again the firm hope that in the very near future legislation will be adopted which has been the subject of tripartite consultations and which includes amendments to all the provisions criticized. The Committee requests the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.