Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

The Committee notes the Government’s report, the report of the direct contact mission which took place in Guatemala from 17-20 May 2004, the discussion which took place in the Conference Committee in June 2004 and the comments on the application of the Convention submitted by the following organizations: Trade Union of Workers of Guatemala (UNSITRAGUA), the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Government’s reply to many of these comments. The Committee invites the Government to examine in the National Tripartite Committee the issues raised by UNSITRAGUA, many of which have been submitted to the Committee on Freedom of Association or refer to problems of interpretation relating to legislation or jurisprudence. The Committee requests the Government to keep it informed in this regard.

The Committee welcomes the fact that the Government has extended the mandate of the direct contact mission in the context of Convention No. 98 to the issues raised in the context of the application of Convention No. 87.

The Committee notes the Government’s statements in its detailed report. The Committee notes that: (1) the labour inspectorate has duties within the new system of sanctions and precise instructions have been issued to inspectors for the effective safeguarding of trade union rights; it has also dealt with all complaints received, resolving them through conciliation or applying the corresponding sanction; (2) the Government indicates that the "pro operario" principle is contained in the Constitution and allows the interpretation of certain matters raised by the Committee of Experts since that principle allows the most favourable standard to prevail; (3) in the last three years, with regard to a wave of strikes, there has been a declaration of illegality and a declaration of legality; the latter is partly due to the reluctance of civil society to use institutional means for resolving labour disputes; (4) in May 2003, a national trade union requested technical assistance from the Ministry to ascertain legal aspects concerning industry trade unions; this may result in the formation of the first industry trade union; (5) there are 1,640 registered trade unions, including 389 which are active (56 of these were set up in 2002 and 52 in 2003); two trade unions with 53 members are registered and active in the export processing sector; the total number of members in the country is 24,554; solidarist associations exist in some 550 enterprises and account for 100,000 members; (6) the registration of trade union organizations is carried out within a reasonable time, as far as possible in line with the period laid down in the Labour Code; some delays are the result of omissions by the applicants; the Government will provide information on the average time for the registration of unions; (7) there is no knowledge of the Public Prosecutor’s Office having initiated penal or civil actions against public servants in the case of a strike; and (8) trade union organizations are exempt from paying taxes but they must be entered in the tax register, even though in principle they cannot be subject to taxation.

1. Acts of violence against trade unionists. The Committee notes the information obtained by the direct contacts mission which was supplied by the Special Public Prosecutor’s Office responsible for investigating offences against trade union members. According to this information, during the period 2003-04, one trade unionist was the subject of an attempted murder, another suffered serious injuries, 30 cases involved threats and ten offences involved coercion. The mission report indicates that physical violence has decreased significantly but has not completely disappeared, while the number of cases involving threats and coercion has increased considerably. It should also be emphasized that, according to the information from the Special Public Prosecutor’s Office and the Government, the perpetrators in the murder cases (three cases in 2001 and one attempted murder in June 2002) have been identified but all cases relating to murder and other offences are still at the investigation stage. The Committee expresses its grave concern at this situation and observes that the WCL alleges that criminal proceedings are extremely slow and impunity is the norm in cases concerning trade unionists.

The Committee notes that, among the commitments made by the Government during the mission, the Ministry of Labour undertook, in the case of death threats or aggression towards trade unionists or employers, to arrange with the Ministry of the Interior the necessary personal protection measures for them, if requested by the persons in question.

The Committee emphasizes that trade union rights can only be exercised in an atmosphere which is free of violence and expresses the sincere hope that the Government will make every effort to ensure the full respect of the human rights of trade union members. The Committee requests the Government to provide information on any offences against trade unionists which are reported to the Special Public Prosecutor’s Office.

2. Detention of CGTG trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías. This matter was reported by the World Confederation of Labour (WCL). The Committee notes that the mission visited these leaders in prison and interviews were held with the members of the court responsible for judging Mr. Rigoberto Dueñas for the purpose of stating the conclusions and recommendations of the Committee on Freedom of Association with regard to the detention of this leader (see 334th Report of the Committee, Case No. 2241, paragraphs 524 and 526).

The Committee notes with satisfaction that the abovementioned court acquitted trade union leader Mr. Rigoberto Dueñas in August 2004 and that the other court acquitted Mr. Victoriano Zacarías.

The Committee is grateful to the Ministry of Labour for taking all necessary steps to ensure that the mission could hold interviews with the detained trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías and with the judicial authorities which had competence in these cases.

3. Legislative problems. The legislative provisions which pose problems of conformity with the Convention are as follows:

-  restrictions on the formation of organizations in full freedom (under section 215 (c) of the Labour Code, the need to have "50 per cent plus one" of those working in the enterprise to form industry trade unions), delays in the registration of trade unions or refusal to register them;

-  restrictions on the right to elect trade union leaders in full freedom (need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

-  restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which allows in particular inspections without prior notice;

-  restrictions on the right of workers’ organizations to perform their activities freely (under section 241 of the Code, strikes are declared not by a majority of the voters but by a majority of the workers; the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in fuel-related services, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86 amended by Legislative Decree No. 35-96 of 27 March 1996)); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (section 390(2) and 430 of the Penal Code and Decree No. 71-86).

The Committee notes that the Government expressed to the mission its willingness to make progress in relation to the issues raised by the Committee of Experts. The Committee welcomes certain measures that were taken and commitments of varying scope that were made by the Government during the mission, which were approved in the presence of the mission by the Tripartite Committee on International Labour Affairs, and it emphasizes in particular that:

(1)  the Ministry submitted to the Tripartite Committee the legislative issues raised in the Committee of Experts so that it could examine the latter periodically with a view to possible amendments;

(2)  the Ministry requested the Labour Committee of the Congress of the Republic to consult the Tripartite Committee on International Affairs concerning initiatives awaiting approval with regard to substantive and procedural reforms;

(3)  the Ministry agrees to the setting up of a rapid intervention mechanism for the examination of complaints intended for the ILO so that an attempt can be made to find a solution within 15 days to the problems put forward before the complaints in question are transmitted to the ILO. This mechanism would enable the ministerial authorities to follow special procedures and the matter in question might be entrusted to a subcommittee of the Tripartite Committee;

(4)  the Ministry will organize a tripartite seminar on the general problems in the export processing sector regarding trade union rights; the seminar will be attended by the ILO and will provide for a plan of action which will be evaluated in the context of follow-up activities.

The Committee notes that the Tripartite Committee on International Labour Affairs has held several meetings with the Labour Committee of the Congress of the Republic. The Committee requests the Government to provide information on the fulfilment of all the commitments made during the mission and expresses the hope that the Government will be in a position in the near future to provide information on progress made in relation to the abovementioned legal provisions. As indicated in the mission report, the Committee emphasizes the number of pending issues and notes the gravity of some of them which have been continuing for years and which include key aspects of trade union rights. The Committee therefore urges the Government to make every effort to ensure that the legislative provisions in question are modified or abolished.

4. Other matters. The Committee also notes that the draft Civil Service Act and Government Agreement No. 700-2003 concerning essential public services in which compulsory arbitration may be imposed, raise problems of conformity with the Convention. These specifically include as essential public services urban and non-urban transport of passengers or freight, postal services, hotels and other lodging premises and their services, social communication media involving the written word, radio, television or any other electronic medium, port and airport operations, etc.

The Committee also notes that, according to the mission report, there is some confusion as regards the competence of the Ministry of Labour in the case of violations of trade union rights in the public sector. The Committee emphasizes the importance of clearly determining the authority responsible for examining complaints concerning the violation of trade union rights.

In general, the Committee notes that, in its comments on the application of the Convention, the ICFTU and UNSITRAGUA refer to a large number of major problems of application of the Convention in practice, which confirm the impact of the legal provisions the amendment or abolition of which has been called for by the Committee of Experts. The ICFTU emphasizes that section 390 of the Penal Code, which provides for imprisonment of one to five years for any persons who perform acts with the purpose of paralysing or disrupting the functioning of enterprises which contribute to the economic development of the country and with the purpose of harming national production, is still in force. The Committee notes that the Government has confirmed that this provision is still in force. The Committee notes that UNSITRAGUA indicates that the only case of a legal strike referred to by the Government is the one of 2002 and not even one industry trade union has been able to be formed.

As regards the exercise of trade union rights in the export processing industry, the Committee notes that, according to the Government, there are currently two trade unions and a total of 53 members. The Committee notes that the mission report mentions the setting up of a specialized labour inspection unit for the export processing industry (where four collective agreements have been signed). The Committee requests the Government to provide information on any complaint concerning the exercise of trade union rights which occurs in that sector, on the corresponding administrative or judicial decisions, and on the manner in which respect for the rights laid down by the Convention for that sector is ensured.

The Committee notes the statements to the mission by the trade union confederations, according to which, in Guatemala, trade unions have a monopoly over collective bargaining; no cases have occurred of collective bargaining undertaken by solidarist associations and the leaders of those associations do not participate in joint committees.

The Committee hopes that it will be able to note concrete progress on the abovementioned points in the near future.