Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee notes the Government’s report. The Committee also notes the comments forwarded with the Government’s report by the National Federation of State Workers’ Unions of Guatemala (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA) on the application of the Convention.

The Committee notes that it has been referring for several years to the lack of any consultation procedure (in the context of collective bargaining in the public sector, regulated by Legislative Decree No. 35-96) to enable trade unions to express their views to the financial authorities so that the latter can take them duly into account in preparing the budget. In this respect, the Committee notes the Government’s indication that there exist direct negotiation procedures for the negotiation of collective accords for public employees and that consultations with employers’ and workers’ organizations are held in writing, through meetings and other means. In these conditions, the Committee requests the Government to provide fuller information in its next report on the consultation and negotiation procedures covering the terms and conditions of employment of workers in the public sector, and particularly whether sufficient time is given to trade union organizations prior to the discussion of the budget.

In its previous observation, the Committee also referred to the failure to comply with final court decisions ordering the reinstatement in their jobs of workers dismissed for trade union activities. The Committee had requested the Government to take steps to have section 414 of the Penal Code amended to strengthen the penalties for failure to comply with the orders and rulings of the judicial authority (currently punishable by fines, the amounts of which are extremely out of date) so that final decisions imposing penalties for anti-trade union discrimination are effectively complied with. In this respect, the Committee notes the Government’s indication that the current legislation empowers the Ministry of Labour to drastically penalize failure to comply with the rulings of labour tribunals and that the Ministry of Labour has initiated a discussion with trade union organizations, employers and jurists, the intended outcome of which is a single procedure to facilitate the processing of labour-related matters and that positive results are expected before the end of the year. The Committee hopes that, as a result of the tripartite debate announced by the Government on this subject, measures will soon be adopted to ensure rapid and effective compliance with judicial decisions ordering the reinstatement in their jobs of workers dismissed for trade union activities and that effective penalties will be established for failure to comply with such decisions. The Committee requests the Government to provide information on the number and nature of the penalties imposed by the Ministry of Labour and/or the judicial authorities for failure to give effect to final decisions ordering reinstatement.

The Committee notes that the Government has not supplied its observations on the comments made by UNSITRAGUA, forwarded with the Government’s report, on the slowness of procedures relating to penalties for infringements of the legislation and the processing of complaints relating to violations of trade union rights, the compilation of blacklists by BDO Platero y Asociados of unionized workers, the dismissal of trade union leaders of the Ministry of Public Health and Social Assistance, the municipalities of El Tumbador, San Marcos, and San Juan Chamelco (Alta Verapaz), the enterprises ACRICASA and INAPSA, the failure to comply with reinstatement orders issued by the Ministry of Labour for unionized workers dismissed by the enterprise Corporación Bananera, and the violation of the right to collective bargaining as a result of the adoption of Governmental Agreement No. 60-2002 of the Ministry of Public Finances. In view of the lack of observations by the Government on the comments of UNSITRAGUA, the Committee: (1) reiterates the comments made in the previous paragraph where it noted certain measures adopted by the Government; recalls that in its previous observation it had noted the existence of draft and preliminary draft legislation intended to overcome the delays and inefficiencies of judicial procedures in cases of anti-union discrimination; and requests the Government to provide information in its next report on whether the above have been adopted and whether it is planned to take any other measures; (2) requests the Government to carry out an investigation into the allegations of anti-trade union discrimination and, if they are found to be true, to take the necessary compensatory measures; and (3) requests the Government to provide a copy of the Governmental Agreement referred to by UNSITRAGUA.

With regard to the comments made by FENASTEG, forwarded with the Government’s report, concerning the denial of the right to collective bargaining for state workers, through the failure to include the necessary funds in the general state budget, the Committee notes that the Government has not supplied its observations on this matter. In these conditions, the Committee requests the Government to take measures to give full effect to the provisions of Articles 4 and 6 of the Convention so as to ensure that public servants who are not engaged in the administration of the State find the necessary support from the budgetary authority in exercising the right to collective bargaining. The Committee recalls in this respect that budgetary powers reserved for the legislative authority should not have the effect of impeding compliance with collective agreements concluded directly by these authorities or on their behalf.

The Committee notes that the International Confederation of Free Trade Unions (ICFTU) made an observation on the application of the Convention in a communication dated 10 January 2002. The ICFTU refers in general terms to: (1) the dismissal of unionized workers and the impossibility of achieving compliance with judicial decisions ordering the reinstatement of these workers in banana enterprises (a subject addressed in the paragraphs above); and (2) the existence of anti-union conduct in enterprises in export processing zones where collective agreements cannot be negotiated and do not exist and where workers who attempt to establish trade unions are physically aggressed by groups organized by enterprises (for example, in the export processing enterprises Cimatextiles and Choi Shin) and threatened with dismissal. The Committee regrets that the Government has not supplied its comments on these observations. The Committee requests the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, with a view to the regulation of terms and conditions of employment by means of collective agreements in enterprises in export processing zones and to provide information in its next report on any new collective agreement concluded in this sector. In view of the Government’s lack of response to the comments of the ICFTU relating to acts of violence because of the establishment of trade union organizations, the Committee emphasizes in general terms that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of trade unions and it requests the Government to endeavour to ensure compliance with this principle in enterprises in export processing zones and to inform it of any measure adopted in this respect.

With regard to the comments by UNSITRAGUA criticizing the draft Code of Labour Procedure submitted by the authorities, leaving aside the draft on which workers and employers had reached agreement, the Committee is addressing this subject in a direct request in the context of its examination of the application of Convention No. 87.

Finally, the Committee notes that the ICFTU, the General Confederation of Workers of Guatemala (CGTG) and the Guatemalan Union of Workers (UGT) have recently sent observations on the application of the Convention. The Committee requests the Government to supply its comments in this respect.