Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report, the discussion in the Committee on the Application of Standards in June 2007 and the cases under examination by the Committee on Freedom of Association.

The Committee also notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) on 12 July 2007, which mainly refer to matters that are already under examination by the Committee, as well as those covered in the cases under examination by the Committee on Freedom of Association.

The Committee also notes the conclusions of the technical assistance mission which visited the country from 26 to 28 February 2007 and the Government’s acceptance of a new mission at the end of April 2008.

The Committee recalls that for various years it has been raising the following problems relating to restrictions on the exercise of trade union rights in practice.

Failure to comply with orders to reinstate dismissed trade unionists. The Committee notes the Government’s indication that, together with magistrates from the Supreme Court of Justice, the Ministry of Labour and Social Insurance has initiated an investigation into all the complaints of failure to comply with orders to reinstate dismissed trade unionists, with particular reference to the cases that are before the Committee on Freedom of Association. In this respect, the Government indicates that in cases in which reinstatement has not been carried out, this is recorded and the employers are prosecuted for failure to comply with court orders. In the case of mayors or ministers who have not complied with court orders, it is necessary to wait until the preliminary procedures are initiated before proceeding with the prosecution. According to the Government, certain cases are before the courts on appeals or recourse for the protection of constitutional rights (amparo). The Committee requests the Government to indicate whether, as a result of these proceedings and court cases, compliance is achieved with reinstatement orders.

Slowness of the procedure to impose penalties for breaches of labour legislation. In this regard, the Committee notes the Government’s indication that meetings have been held with magistrates of the Supreme Court of Justice with a view to exchanging impressions and information, with a view to making tangible proposals to seek improvements in the application of labour law through the orders issued by labour courts. In this respect, the Government indicates that greater flexibility has been achieved in the penalties applied by the labour courts for labour-related offences and the respective fines have been imposed. Studies and analyses have been carried out according to the tripartite proposal for the recruitment of an official exclusively assigned to monitoring the implementation of sentences for labour and social security offences. The tripartite proposal to carry out training for labour judges with a view to unifying the criteria applied will be studied and analysed. It is also intended to carry out activities in the context of the project for the strengthening of labour courts in Central America and the Dominican Republic, which is currently being implemented by the ILO Subregional Office and is financed by the Government of the United States.

The Committee also notes that in its conclusions the technical assistance mission considered that court procedures are slow in view of the low number of courts and the possibility for those found guilty, following the ruling of the court of second instance, to challenge the ruling through a procedure for the protection of constitutional rights (amparo). This procedure impedes prompt action by the courts and means in practice that a new body becomes involved, thereby doubling the time required for the proceedings. It adds that the roots of the problem lie in the excessive reliance on the courts to assert collective labour rights. There is a tendency to defer to the courts when seeking collective solutions, and an absence of typical trade union action.

Need to promote trade union rights (and particularly collective bargaining), especially in export processing zones. The Committee notes the Government’s indication that two tripartite seminars were undertaken on freedom of association and collective bargaining in the export processing sector, in accordance with the recommendations of the Committee. The Government adds that due to the high level of demand and the need to promote trade unionism and collective bargaining in this sector, and with a view to continuing this work, technical and financial assistance has been requested with a view to holding a monthly tripartite seminar on freedom of association and collective bargaining in the export processing industry. The Government adds that, in the context of a draft national policy of free advice for workers wishing to organize, 15,000 information leaflets have been issued. Furthermore, there is a free legal advice service for workers wishing to organize, including the regular dissemination of labour and social security laws. Labour inspectors are continually holding training seminars. The Government adds that the dispute prevention body in the export processing zone has carried out two seminars covering the subjects of labour law and “complaint procedures”. Workshops are also being organized on the subject of freedom of association.

The Committee further notes that the technical assistance mission indicated that it received contradictory information on the situation with regard to collective bargaining in export processing zones, where there are only two collective agreements in force, although it is not known how many workers they cover. There are now no more than three trade unions existing in export processing zones. The Committee requests the Government to continue promoting trade union rights in export processing zones and to provide information on this subject, particularly taking into account the reference in their latest communication by the national trade union organizations to substantial problems relating to trade union rights.

Numerous anti-union dismissals and violations of collective agreements. In this connection, the Committee notes the Government’s indication that, as a result of an investigation carried out by the labour courts it was found that there are very few complaints relating to anti-union dismissals. The Committee nevertheless emphasizes that the trade union organizations of the country in their latest communication refer to many cases of anti-union dismissals and that there are complaints before the Committee on Freedom of Association on this subject. With regard to the violation of collective agreements, according to a joint investigation undertaken by the Ministry of Labour and Social Security and the labour courts, it was found that in the few complaints that are made the parties to the conflict use the Joint Board to reach a settlement directly through conciliation.

According to the conclusions of the technical assistance mission, the fall in trade union membership has very different causes, although emphasis should be placed on the excessive slowness of procedures in cases of anti-union discrimination, the abuse of the appeal procedure for constitutional rights (amparo) and the inefficiency of the system of penalizing violations of labour and trade union legislation. The mission also concluded that cases of failure to comply with collective agreements can be taken through the usual court procedures, but that in practice this process, in the same way as the penalization of violations of labour law, can also take years. The Committee notes that the problems referred to persist and requests the Government to provide information on the complaints made.

Inadequacy of guarantees in the procedure for the termination of public officials (section 79 of the Civil Service Act; section 80 of the Regulations issued under this Act; Decree No. 35-96 amending Decree No. 71-86 of the Congress of the Republic; and Government decision No. 564-98, of 26 August 1998). In this context, the Committee notes the Government’s indication that the relevant provisions are contained in the Political Constitution of the Republic, the Labour Code, the Civil Service Act and its Regulations, and the Act on unionization and regulation of the right to strike by state employees. To impose a penalty, which may range from a verbal warning to termination of employment, it is necessary to comply with the requirements set out in the law, without which the penalties may be void. This shows that there are adequate guarantees in the procedures for the termination of public officials from the view point of the right of defence and the remedies available to workers. The Committee notes this information and understands that this issue was raised years ago by trade union organizations which were calling for a system of termination of employment in the public sector similar to the one set out in the Labour Code.

Need for the Code of Labour Procedures to be subject to in-depth consultations with the most representative organizations of workers and employers. In this connection, the Committee notes the Government’s view that it is not necessary to amend the Code of Labour Procedures. The Government adds that the magistrates of the Supreme Court of Justice maintain constant and productive dialogue with all the labour court judges in the country and that the objective is to make labour procedures more efficient and entirely oral, so that they can be more expeditive. The Government adds that the Extraordinary Commission for reforms in the judicial sector of the Congress of the Republic prepared a draft text which approves amendments to the Act respecting the protection of constitutional rights (amparo) which has received a favourable opinion and that the text was discussed and approved in the plenary of the Congress of the Republic in two readings. This proposed reform was the subject of broad consultation with the magistrates of the Supreme Court, the National Commission to follow up and support the strengthening of justice, officials of the Office of the Public Prosecutor, the public criminal defence service, representatives of the college of advocates and sectors of civil society. The reform is intended to make the process of seeking constitutional protection (amparo) more flexible and convert it into a system that is only used in special circumstances, brief and effective in its function of protecting fundamental human rights. In this way, it is intended to minimize the problems that are currently occurring in which the process of the protection of constitutional rights has given rise to delays and increased the workload of the courts through abusive actions. The Committee requests the Government to provide information on developments in this draft reform.

Bill on civil service reform. On this subject, the Committee notes that the initiative to reform the Civil Service Act was the subject of broad consultations. The Bill has received one favourable opinion and another that is unfavourable in the Congress of the Republic. The Government indicates that it has requested technical assistance to assess and make the necessary recommendations and proposals on the compatibility of the initiative with the Convention. The Committee hopes that this technical assistance will be provided in the near future.

Other matters. The Committee previously requested the Government, in the context of the Tripartite Commission, for an evaluation to be made of the various specific issues on which the institutional system for the defence of trade union rights remains deficient. In this respect the Committee notes the Government’s indication that meetings were initiated recently in the Tripartite Subcommittee on Legal Reforms, which will examine this issue.

The Committee further notes that, in general, the mission considered that the legislation that is in force raises obstacles to the appropriate development of trade union activities. In its report, it indicates that in 2005 and 2006, a total of 13 and 17 agreements were concluded respectively. The mission considered that the roots of the problem in Guatemala in relation to freedom of association and collective bargaining are to be found in the existence of a legal labour system, in both substance and procedural terms, which prevents and hinders the appropriate development of trade union activity, and accordingly of collective bargaining, as indicated by the ILO supervisory bodies in relation to Conventions Nos 87 and 98. Without their reform, it is very difficult to propose an appropriate solution and, moreover, the social partners and the Government display an approach that is entwined with attitudes arising out of this legal system. The Committee notes that this system gives priority to labour stability in collective disputes, which can last for years when they go to the courts. In a certain way, collective bargaining has been exchanged for labour stability, which does not ensure the effective application of Article 4 of the Convention.

The mission also considered that the Ministry of Labour is very weak for various reasons (budget, staffing, facilities, etc.), and even more so since a ruling by the Constitutional Court that it cannot judge and penalize violations of labour rules. This decision relieved the labour administration of the little enforcement capacity that it had. In this respect, the Committee notes the Government’s indication that the General Labour Inspectorate is competent to receive complaints of violations of the trade union rights of state workers and: (a) to participate as a conciliator, in accordance with the ruling by the Jurisdictional Disputes Tribunal of the Supreme Court of Justice of Guatemala; or (b) to submit them to the courts. The Government adds that the first of these channels is currently used to find alternative settlements to the innumerable collective disputes between the public administration and its employees.

With regard to the Tripartite Committee, the Committee notes the view of the mission that the Tripartite Committee requires technical assistance to improve its operation. It requests the Government to forward this assessment to the Tripartite Committee. According to the report of the mission, the Tripartite Committee fulfils a very valuable role of social dialogue and of slowing down undesired legislative initiatives and proposals, and of examining and resolving collective disputes, but it does not manage to make joint proposals in the case of most pending problems. The main conclusion of the mission is that in recent years, despite the various ILO missions, the serious problems raised by the Committee of Experts persist and that dialogue in the Tripartite Committee has not resolved them. In the meantime, the unionization rate, according to the trade unions, is between 0.5 and 1.88 per cent and the number of collective agreements is very low. In any case, detailed statistics of trade union membership and collective bargaining, including the number of workers covered, do not exist and it would be necessary to find a solution to this situation. The Committee observes that the mission welcomed the request by the Government (and the Labour Commission of the Congress) for additional ILO assistance to overcome the remaining problems, and for the organization of tripartite seminars on trade union rights in export processing zones.

The Committee notes the Government’s indication that the mission was very useful. As a result of its work, the Committee notes the Government’s indication that tripartite seminars have been carried out on freedom of association and collective bargaining in the export processing sector and that meetings were convened of the Legal Reform Subcommission, the pending issues were reviewed and priorities established, in terms of the subjects to be considered. The comments made by the Committee have been reviewed, and certain of them had already been reviewed and obtained consensus in 2001. The Committee notes the Government’s request for continued technical assistance.

Nevertheless, the Committee observes with concern that the serious problems on which it has been commenting for numerous years persist and that, despite the tripartite discussion at the national level and the technical assistance provided on various occasions, there has been no major progress. The Committee strongly hopes that the new Government, with the assistance of the mission suggested by the Conference Committee that will take place at the end of April 2008, will provide evidence of the political will to resolve these issues. The Committee requests the Government to provide information in its next report on any positive development that occurs in relation to the various issues referred to above.