Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee notes the Government’s report. It notes the comments made by the Trade Union and People’s Action Unit (UASP), the International Confederation of Free Trade Unions (ICFTU), the Union of Guatemalan Workers (UGT), the Trade Union Confederation of Guatemala (UNSITRAGUA) and the World Confederation of Labour (WCL), and the Government’s response to some of the issues raised.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179), as well as comments by the ICFTU and the UGT, confirm that there are many murders, acts of violence, death threats and intimidation against trade unionists. In its previous observation, the Committee noted and welcomed the Government’s indication that a special unit had been set up in the Public Prosecutor’s Office and had begun operations to improve the efficiency of the criminal investigations into acts of violence against trade unionists. The Committee stresses the gravity of the situation and points out that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will take prompt action to ensure that basic human rights and fundamental freedoms, which are essential to the exercise of trade union rights, are effectively observed. The Committee further requests the Government to provide information on the results of the work done by the above unit, including relevant statistical data.

2. Requirement under the Constitution to be of Guatemalan origin in order to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that there have been no new developments in the legislation on these subjects.

The Committee points out that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. The Committee has nonetheless recognized that a State may require foreign workers to have resided in the country for a reasonable period before becoming eligible for trade union office. With regard to section 223 of the Labour Code, the Committee points out that it may be in the interest of branch or industry unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to inform it of any measures taken to amend the legislation and the Constitution so as to ensure that workers are able to determine in full freedom the conditions for the election of their officers and hence appoint representatives of their own choosing.

3. Requirement that, in order to call a strike, the workers must constitute 50 per cent plus one of those working in the enterprise (section 241 of the Labour Code). The Committee recalls that in its previous comments it pointed out that in votes on the calling of strikes only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee asks the Government to take steps to amend the legislation so that only votes cast are counted in reckoning the majority.

4. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and fuel-related services, and the prohibition of sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether or not the restrictions set out in Legislative Decree No. 35-96 had been repealed by implication. The Committee took note of the Government’s undertaking to continue to implement the recommendations of the Committee of Experts and noted that on 8 February 2002 a high-level labour committee was established, comprising Ministers of State and representatives of the Trade Union and People’s Action Unit (USAP) which was to examine such matters, including the repeal of Legislative Decree No. 35-96. The Government’s report, while not providing more information in this respect, points out that there has already been, implicitly, a partial repeal of the decrees criticized by the Committee. The Committee insists on the importance it attaches to the precise determination of trade union rights in legislation and thus requests the Government to take the necessary measures to formally repeal the abovementioned limitations in Decree No. 71-86 as amended by Decree No. 35-96.

5. Assertion by the trade union federations that in recent years there have been no instances of legal strikes. The Committee asked the Government to provide statistics on both the legal and the illegal strikes that had occurred in the past two years and to state, in the latter case, why these strikes were declared illegal. The Committee notes that, according to the Government’s report, in recent months two strikes have been called in the public sector and in a third instance, the workers in the enterprise concerned sought to have the strike declared legal but the enterprise succeeded in delaying the process until the collective agreement was signed. The Committee requests the Government to continue to provide information on the number of legal and illegal strikes that have occurred in the last three years, indicating the sectors involved.

The Committee notes that the Government has submitted its comments to the Committee on Tripartite Affairs and that the Labour Code is currently being reformed. The Committee hopes that it will be able to note in the near future that significant progress has been made in the areas mentioned.

The Committee noted previously that the Government had requested technical assistance from the ILO. It further notes in this connection that the Government is of the view that the direct contacts mission requested in connection with Convention No. 98 by the Committee on the Application of Standards of the International Labour Conference would be more appropriate under the new Government that would take office after the elections (January 2004).

Lastly, the Committee asks the Government to send its reply to the comments of UNSITRAGUA (17 July, 25 August and 1 September 2003) and the WCL (28 August 2003).

In addition, the Committee is addressing a request on certain points directly to the Government.