Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 discussion in the Conference Committee on the Application of Standards in 2009 and the ten cases that are before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2700, 2708 and 2709). In its previous observation, the Committee noted the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission with a view to improving the application of the Convention. The Committee notes the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009, as well as a final mission to provide assistance to the Tripartite Committee for the Formulation of the Road Map on the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee notes that in the end there was no consensus between the social partners and the Road Map was prepared solely by the Government.

The Committee also notes the detailed comments on the application of the Convention made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 and by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in defence of the rights of workers in a communication dated 28 August 2009 which relate to issues already raised by the Committee, as well as serious acts of violence against trade union members and leaders, obstacles to the process of registering trade union organizations, difficulties in the exercise of the right of assembly of trade unions and other alleged violations of the Convention. The Committee hopes that in the context of the tripartite agreement concluded during the high-level mission all of the matters raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence and impunity against trade unionists

The Committee recalls that for several years it has been noting in its observations acts of violence against trade unionists and impunity in this respect, and that it had asked the Government to indicate developments in this respect.

The Committee notes that, at the proposal of the high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which evaluations will be carried out of: “(1) institutional action, including the most recent activities, and in particular the special protection measures to prevent acts of violence against trade unionists who are under threat; and (2) of the measures that are being taken (increases in the budget and in the number of investigators) to guarantee that effective investigations are conducted with sufficient resources so as to be able to elucidate the crimes committed against trade unionists and to identify those responsible”.

The Committee notes that both the ITUC and the MSICG in their comments place emphasis on grave acts of violence against trade union leaders and members during the period 2008–09 and report a climate of fear and intimidation with a view to undermining existing trade unions and preventing the establishment of new ones. Both trade union organizations also emphasize the deficiencies in the labour inspectorate and the crisis of the judicial system.

The Committee notes that in its statements to the Conference Committee and its report the Government indicates that: (1) the State of Guatemala expresses special interest in guaranteeing full respect for the human rights of trade unionists, and of all Guatemalan nationals in general, as well as reiterating the Government’s commitment to combating impunity through the improvement of the judicial system and the labour administration system within the executive authority; (2) the Tripartite Commission on International Labour Affairs met the Public Prosecutor and the Attorney-General with a view to requesting the establishment of a public prosecution service for crimes against journalists and trade unionists, with support being expressed for this request by each of the representatives of all sides; it had also met the Council of the Office of the Attorney-General, together with the Public Prosecutor, to discuss the subject of violence not only against trade unionists, but also against the lawyers representing trade unionists and against workers in general; (3) as a strategy of inter-institutional coordination and with a view to supporting the conduct of investigations, in November 2008 two meetings had been held with representatives of the Office of the Attorney-General, the Ministry of the Economy, the Ministry of Government, the Ministry of Foreign Affairs and the Supreme Court of Justice. The meetings had concluded that, in view of the existence of the Multi-institutional Commission for Industrial Relations in Guatemala, established in 2003, by Government Decision No. 430-2003, it was adequate to reactivate the Multi-institutional Commission to follow up cases of violence against trade unionists and other matters relating to industrial relations in the country, and accordingly to collaborate with the Office of the Attorney-General, and particularly with the Office of the Prosecutor General for the investigation and resolution of the cases; (4) during 2009, the Multi-institutional Commission for Industrial Relations in Guatemala had met regularly, holding four meetings between 1 January and 30 July 2009; (5) progress has been made in the criminal investigations of certain murders; for example, on 10 January 2009, a person was apprehended who had been charged with committing the murder of the trade union leader, Pedro Zamora, and on 15 April 2009 the public prosecutor lodged criminal charges with the judiciary, with the requirement to hold a trial; during the hearing on 4 June 2009, the magistrate found that there was sufficient evidence against the trade union member to conclude the preparatory stage and begin court proceedings; in the upcoming months, the accused will be tried in the criminal courts; and (6) there is no criminalization or stigmatization of trade union activity. The Government attaches a copy of the records of the meetings of the National Tripartite Commission. In a recent additional report, the Government indicates that the accused was not convicted by the court of the murder of the trade union leader Pedro Zamora and that the Office of the Attorney-General will appeal against the ruling.

The Committee refers to the conclusions of the Committee on the Application of Standards, in which it noted with concern numerous and serious acts of violence against trade unionists, as well as the inefficiency of the criminal proceedings related to these violent acts, giving rise to a grave situation of impunity and the excessive delays in legal proceedings. It also noted the allegations concerning the lack of independence of the judiciary. The Committee on the Application of Standards noted the high-level mission which visited the country in 2009, which had emphasized that, while additional resources had been allocated to the investigatory mechanisms to combat impunity, further measures and resources were clearly necessary to that effect. In this connection, it observed with deep concern that the situation in relation to violence and impunity appeared to be worsening and it recalled with urgency the importance of ensuring that workers are able to carry out their trade union activities in a climate free from violence, threats and fear. The Committee on the Application of Standards highlighted the need to make meaningful progress in sentencing in relation to crimes of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee on the Application of Standards observed in this respect the need for the continued strengthening of and specific training for those responsible for investigating violence against trade unionists, as well as an improved collaboration of the various bodies mandated in this regard. The Committee on the Application of Standards hoped that concerted efforts in this regard would finally permit meaningful progress to be made in bringing an end to impunity.

Further noting with concern the important allegations of an anti-union climate in the country and the stigmatization of trade unions, the Committee on the Application of Standards recalled the intrinsic link between freedom of association and democracy. It further noted that, beyond the question of impunity, the conclusions of the high-level mission focused on the need for concerted action in relation to the effectiveness of the judicial system, the effective respect for freedom of association by all parties and the effective functioning of the National Tripartite Commission. In particular, the slowness and lack of independence of the judiciary has given rise to significant challenges to the development of the trade union movement. The Committee of Experts shares the opinion of the high-level mission of 2009 concerning the importance of adopting the necessary measures to ensure that awareness is raised to an adequate level concerning the fundamental role of trade unions in the social and economic development of society and their close links with the consolidation of democracy. For this reason, it is important for measures to be taken to actively prevent any stigmatization of trade unions and the trade union movement.

The Committee on the Application of Standards observed that, despite the seriousness of the problems, there had been no significant progress in the application of the Convention, in legislation or in practice. It urged the Government to redouble its efforts with respect to all the above matters and to adopt a complete, concrete and innovative strategy for the full implementation of the Convention, including through the necessary legal reforms, the strengthening of the programme for the protection of trade unionists and witnesses, and of the measures to combat impunity and the provision of the financial and human resources necessary for the labour inspectorate and the investigative bodies, such as the Office of the Public Prosecutor. The Committee on the Application of Standards expected, with the assistance and necessary technical cooperation of the Office, that the Government and the social partners would be in a position to agree upon a road map with clearly determined time frames for the necessary action in respect of all the above points. The implementation of this road map and any progress made should be reviewed periodically by the ILO. More tangibly, the Committee on the Application of Standards requested the Government to provide a detailed report to the Committee of Experts containing information on the tangible progress made in legislative reforms, the measures taken to combat impunity and the creation of a conducive environment for trade union movement and it expressed the firm hope that it would be in a position next year to note substantial improvements in the application of the Convention.

The Committee of Experts observes that many of the allegations in the MSICG’s communication were submitted to the Committee on Freedom of Association at its meeting in November 2009. In its conclusions, the Committee on Freedom of Association noted with concern that the allegations presented in this case were extremely serious and included numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a family member of a trade unionist, obstacles to granting legal status to unions, the dissolution of a trade union, criminal proceedings for carrying out trade union activities, and major institutional failings with regard to labour inspection and the functioning of the judicial authorities, creating a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failures to comply with reinstatement orders issued by the courts), and in criminal matters (see 355th Report, Case No. 2609, paras 858 et seq.).

The Committee on Freedom of Association regretted the very limited information provided by the Government on a very small number of allegations and concluded that these replies by the Government were an illustration of the excessive slowness of the procedures outlined by the complainant organizations and the resulting climate of impunity.

The Committee of Experts, in the same way as the Committee on Freedom of Association, once again draws the Government’s attention to the principle that a genuinely free trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessive delays in proceedings and the absence of judgements against the guilty parties creates in practice a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

In view of all of the above, the Committee concludes that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and members and to combat impunity and that the conclusion of the Committee on the Application of Standards continues to be globally valid concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendations of the ILO supervisory bodies. In the first place, the Committee emphasizes that the Government has only replied to a very small number of allegations of violence submitted to the Committee on Freedom of Association in Case No. 2609, despite their extreme gravity. Secondly, the Road Map on all the measures requested by the Committee on the Application of Standards in June 2009 was only prepared in the third week of November 2009, days before the meeting of the Committee of Experts. Thirdly, the Government emphasizes in its report the recent reactivation of the Multi-institutional Commission (which until recently dealt with issues of anti-union violence), the request for a special unit of the public prosecution service dedicated particularly to trade unionists (without indicating the decision that was adopted), although very little progress has been made in a very low number of cases of violence against trade unionists.

The Committee is bound to note that the situation of violence against trade unionists, the shortcomings in the operation of the criminal justice system and the situation of impunity have been further aggravated. The high-level mission of February 2009 noted that in recent years, despite the higher level of violence committed against trade unionists (according to information from Government officials), there have not been effective prosecutions or convictions. The high-level mission received testimony of the general lack of independence of the judicial authorities and Government bodies in relation to criminal cases. The Government indicated to the high-level mission that the situation of violence was generalized and denied the existence of a state policy against the trade union movement.

The Committee notes that the high-level mission of February 2009 determined that a significant increase is required in the capacity and budget of the Office of the Public Prosecutor of the Nation, with a view to increasing the number of prosecutors and investigators. The mission proposed that additional resources should be allocated to existing programmes for the protection of trade unionists (there are currently 44 trade unionists benefiting from protection measures) and witnesses, and that these programmes should be appropriately coordinated. The high-level mission considered that measures need to be taken to actively combat any stigmatization of trade unions and the trade union movement implied by the association of trade union activities with criminal acts. The high-level mission indicates that the trade union membership rate and the number of collective agreements is very low.

The Committee notes the Road Map formulated by the Government after holding consultations in the National Tripartite Commission, in which it was emphasized that consensus was not reached between workers’ and employers’ organizations. The Road Map and the Government’s introduction are summarized below:

Introduction and background

In June 2009, when the 98th Session of the International Labour Conference was held, the Ministry of Labour and Social Insurance (MTPS) of Guatemala undertook to prepare a road map to address the observations of the Committee of Experts on the Application of Conventions and Recommendations of the ILO.

On 2 July 2009, the MTPS requested technical assistance from the ILO for the preparation of a time-bound road map for the adoption of the necessary measures to achieve effective compliance with ILO Convention No. 87 in Guatemala.

In a response to this request, the first outline of the road map was received from the International Labour Standards Department of the ILO, which was submitted for consideration by the Tripartite Commission on International Labour Affairs in Guatemala in the context of five meetings. It was only examined in three sessions, without the road map being formulated and approved because, although the representatives of workers and employers expressed their viewpoints, they did not reach consensus. They were also convened to a meeting on 19 November at which the sole item on the agenda was the road map.

In view of this situation, the High Office of the Ministry of Labour and Social Insurance of Guatemala took the decision to formulate the road map through which the State of Guatemala undertakes to implement the activities set out therein.

Strategic Objective I: Provide an effective response to all the cases submitted to the ILO Committee on Freedom of Association

The State of Guatemala, in the same way as many countries in the region, has historically been singled out on many occasions concerning the violation of the right to organize and freedom of association, which are protected by ILO Conventions Nos 87 and 98.

In view of this situation, the current Government of the Republic of Guatemala considers it a priority to address the observations, recommendations and complaints relating to freedom of association which have been referred to the ILO supervisory bodies, particularly those relating to the legal status of persons who due to the exercise of their right to organize are subject to persecution, violence or intimidation.

We are aware of the need for greater attention to be paid to the follow-up investigation and conclusion of cases of violence against trade unionists, and we therefore consider it necessary to begin with affirmative action involving an effective and periodic report to the Committee on Freedom of Association (CFA), including measures of inter-institutional coordination with a view to the exchange of pertinent and relevant information, thereby ensuring that it is brought to the knowledge of the ILO supervisory bodies.

Accordingly, we propose the strengthening of the prosecution unit of the Directorate of International Affairs, through the assignment of qualified personnel devoted exclusively to this subject, with the necessary resources to carry out their activities and provide an immediate response to the specific situation of each of the cases under investigation.

It is also our wish to formulate an annual schedule of meetings between the Ministry of Labour (International Labour Affairs Unit) and the Office of the Attorney-General, with a view to establishing a permanent framework for action between the two institutions.

The Directorate of International Labour Affairs will also undertake an assessment of the cases which have been concluded to bring them to the knowledge of the CFA, as well as of specific cases of violence against trade unionists, with a view to the establishment of a mechanism for their appropriate follow up in the relevant procedural bodies and to provide relevant and regular responses to the CFA of the ILO.

Strategic Objective II: Strengthening inter-institutional coordination machinery

Based on experience, we consider it necessary to maintain constant and permanent communication in a flexible and effective manner with Government institutions that are closely involved in labour matters. For this purpose, the Multi-institutional Labour Commission for Labour Matters in Guatemala is being reactivated and a list will be drawn up of the bodies which are not yet included in the above Commission, but which are closely related to the subject matter.

Through this new system, the intention is to improve coordination between this Ministry and the related Government institutions, as a basis for addressing labour disputes appropriately and the strengthening of industrial relations in the country.

By way of illustration, it should be noted that recent separate meetings have been held with the Advocate-General of the Nation, the Public Prosecutor and the Attorney-General, the President of the Supreme Court of Justice, accompanied by the four magistrates of the Chamber for the Protection of Constitutional Rights, whose remit includes labour courts, and a magistrate from the Civil Chamber, officials who on 13 October 2009 took office for a period of five years and the Minister of Government. All of these officials were informed of the intention to address the observations, recommendations and complaints submitted against the State of Guatemala in labour matters, and they offered full cooperation.

Strategic Objective III: Addressing the recommendations of the CEACR for legislative reforms

A Lawyers’ Commission of the MTPS has been appointed with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of the Lawyers’ Commission was communicated to the former ILO technical assistance mission.

We have in our possession a list of legislative initiatives proposing the adoption of reforms to Decree No. 1441 of the Congress of the Republic and the Labour Code, which are currently being examined by the Congress of the Republic. This shows the political will of the State of Guatemala to resolve gradually the problems deriving from the application of Guatemalan labour law.

In addition to the above, an analysis has also been undertaken of the manner in which the Penal Code penalizes the right to strike of workers and, taking into account the CEACR’s recommendations, there is now a study to be submitted to the state bodies for decision.

The strategy that will be applied to achieve the expected objectives has also been planned.

Attached is a matrix containing the Road Map to address the observations and recommendations of the ILO supervisory bodies with regard to Conventions Nos 87 and 98 on the right to organize, freedom of association and collective bargaining.

The Committee observes that the measures outlined in the Road Map are either to be implemented on a constant basis or are subject to time limits, which mainly expire on 31 December 2009, or before that date, except for the submission of draft legal reforms to the state bodies (the time limit for which is set at 28 February 2010) and certain aspects of the measures for the coordination of state bodies in relation to combating violence.

The mission which provided assistance for the formulation of the Road Map emphasizes in its report with regard to the issue of anti-trade union violence: (1) the commitment of the Office of the Attorney-General to reinforce measures for the investigation of the complaints received, and in general of any complaint relating to punishable offences against trade unions, and to submit regularly to the Ministry of Labour and Social Insurance the available information concerning such complaints, so that it is able to reply to the supervisory bodies and particularly the Committee on Freedom of Association; the public prosecution service indicates difficulties relating to the lack of cooperation of those lodging complaints; (2) the offer of cooperation from the Ministry of Government, both for the protection of persons under threat and in support of the action of the labour inspectorate; (3) the offer of cooperation of the new magistrates in the Supreme Court of Justice to alleviate the expenditure and efforts of the Ministry (inspectors) particularly in procedures to penalize offences; (4) the new meeting of the Multi-institutional Commission established by the Ministry to strengthen the links between the officials represented on the Commission. The meeting was attended by the new magistrate in the Supreme Court of Justice who is responsible for labour matters, the training of judges and the modernization of labour procedures; and (5) the prosecutors provided the following figures for cases concerning crimes against trade unionists: 31 in 2007, 32 in 2008 and 48 in 2009. The Ministry of Government indicated that a series of trade unionists are currently receiving personal or zoned police protection and indicated its readiness to provide support through the police for action by inspectors, when so requested.

With regard to the problem of impunity, the report of the mission indicates that the problem of impunity in Guatemala is seen as a worrying national problem that is more practical than legislative in its nature. The press frequently reports murders, particularly of bus drivers, without those who committed them being arrested and brought to trial. This is due, on the one hand, to the precarious nature of the system of investigation and, on the other, the situation of the judiciary. The International Commission against Impunity in Guatemala (CICIG) indicated in its report that “Currently in Guatemala the conditions do not favour the existence of independent and impartial judges”. Nevertheless, steps have recently been taken which could be significant: (a) the resignation of the Prosecutor-General of the Republic and the Attorney-General, at the request of the President of the Republic, and the appointment of a new Prosecutor-General and Attorney-General, who is a career official in the public prosecution service, on 30 July 2009, after first consulting the CICIG; and (b) the renewal of the magistrates of the Supreme Court of Justice on 13 October 2009, following a rigorous selection process, on which, among other bodies, views were expressed by the Commissioner of the International Commission against Impunity in Guatemala (CICIG).

The Committee requests the Government to: (1) ensure the protection of trade unionists who are under threat of death; (2) convey to the public prosecutors and the Supreme Court of Justice its deep concern at the slowness and ill-effectiveness of the judicial system and its recommendation concerning the need to elucidate murders and crimes committed against trade unionists with a view to penalizing those responsible; (3) allocate sufficient resources for these objectives, and consequently increase human and material resources, ensure coordination between the various state bodies who may be called upon to intervene in the judicial system and train investigators; and (4) give priority to these matters in Government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the grave problem of criminal impunity with regard to crimes against trade unionists.

The Committee requests the Government to provide regular information on the attainment of the objectives of the Road Map and the administrative, judicial and legal reforms set out therein. The Committee trusts that the objectives and measures envisaged in the Road Map will result within a reasonable period of time in crucial improvements with regard to the serious problems raised.

Finally, the Committee once again expresses its deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be  exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the necessary investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and punished in accordance with the law. The Committee requests the Government to keep it informed of any developments in this respect. The Committee nevertheless expresses its concern that the information provided by the Government only exceptionally reports cases in which those responsible have been identified and punished, and emphasizes the need to considerably reinforce the criminal justice system.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code) and delays in the registration of trade unions or the refusal to register them;

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

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by the majority of those casting votes, 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 services related to fuel, 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, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      the Civil Service Bill; in its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and

–      the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or other employment benefits, other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this principle in case law has not been given effect in national practice according to technical assistance reports.

With regard to these matters, the Committee notes that, at the proposal of the 2008 high-level mission, the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98. This agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.), and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee has received the report of the first technical assistance mission (November 2008) and of a second technical assistance mission (January 2009), following up the high-level mission (April 2008), and of a technical assistance mission carried out in November 2009 to prepare the Road Map of measures to give effect to the Convention called for by the Conference Committee on the Application of Standards. It observes that the Road Map includes deadlines for the submission of draft legislation covering the legislative reforms requested by the Committee of Experts. It recalls in this respect that a series of proposals to address the legislative problems raised were prepared by the National Tripartite Commission along with the ILO technical assistance missions in the first quarter of 2009.

The Committee requests the Government to provide information on this matter and hopes to be able to note progress in the near future. The Committee firmly hopes that with the technical assistance that it is receiving, the Government will be able to provide information in its next report offering a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector (maquilas). For many years, the Committee has been noting the comments made by trade union organizations on significant problems of application of the Convention in relation to trade union rights in export processing zones (maquilas). In its 2008 observation, the Committee noted the Government’s indications that: (1) the General Labour Inspectorate of the Ministry of Labour and Social Insurance was addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector were closed and ten were closed in 2008; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsman; (4) there are ten trade unions in the sector, with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is relying upon technical support from the ILO.

The Committee notes that the Government confines itself in its report to indicating that, during the last half of 2008 and up to now (December 2009) 61 trade unions have been registered, together with 29 collective accords, but that it does not provide information on training activities in the field of trade union rights.

The Committee notes the recent comments of the ITUC according to which it is impossible to exercise the right to organize in export processing zones in view of the determined opposition of the employers. Only three unions have been established in the 200 export processing zones that exist, and the labour authorities are incapable of exercising control over the failure to comply with and the violations of the legislation in this sector.

The MSICG considers that the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee notes that, in its conclusions, the high-level mission of 2008 indicated that: “according to the Ministry of Labour and Social Insurance, there are seven collective accords in the export processing sector, but only two of them date from 2007. The remainder date from 2003 and before. With regard to trade union membership, according to the administrative authorities, there are six unions with 562 members in export processing zones, in a context of around 200,000 workers. In the view of the executive committee of the trade union movement, there are only two unions in this sector. Whatever the correct figure, there is clearly only a minimum level of trade union activity and collective bargaining in the export processing sector, thereby constituting a problem in the application of Conventions Nos 87 and 98”. The Committee requests the Government to provide information on the exercise of trade union rights in practice in export processing zones (number of trade unions, number of Worker members, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions adopted by the authorities and the number of inspections).

Under these conditions, the Committee hopes that the Government will continue benefiting from technical assistance from the Office, so that the Convention is given full effect in the export processing sector, and that it will continue providing information on this matter. The Committee requests the Government to refer to the National Tripartite Commission problems which arise in relation to the exercise of trade union rights in the export processing sector and to provide information on any developments.

National Tripartite Commission. The Committee has received the reports on the work of the National Tripartite Commission between August 2008 and July 2009. The Committee notes that, according to technical assistance reports, this Commission is a valuable tool, although there are currently problems relating to the recognition by all concerned of the workers’ representatives due to a division in UNSITRAGUA. Assistance needs to be provided to the Tripartite Commission for the preparation of the documents to be discussed and the management of meetings to facilitate the adoption of decisions or firm conclusions. The Committee endorses the opinion expressed in the technical assistance report and invites the Government to request technical assistance on this matter, as well as for the works of the Legal Reform Subcommittee, which has prepared the documents setting out the reforms requested by the Committee of Experts, and the functioning of the mechanisms for rapid intervention in cases of violations of trade union rights. The Committee requests the Government to continue providing information on the work of the National Tripartite Commission on International Labour Affairs, and that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee expresses the firm hope that in the near future it will be able to note that significant progress has been made in the application of the Convention.