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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - 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 of 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 reports of 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 of the Application of Standards (this mission took place from 16 to 20 November 2009). 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 further anti-union dismissals, the formulation of “blacklists”, acts of interference, violations of the right to collective bargaining 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 issues 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.

The Committee recalls that for many years it has been referring to the following problems relating to restrictions on the exercise of trade union rights in practice:

–      the excessive delays in procedures for the reinstatement of trade unions in accordance with rulings by judicial bodies and the utilization of amparo procedures (for the protection of constitutional rights); this is a general problem and the Committee has received information concerning an average of three years between the preliminary hearing and the trial, which may last for between six and seven years;

–      the failure to comply with orders for the reinstatement of dismissed trade unionists;

–      the slowness and ineffectiveness of procedures to impose penalties for breaches of labour legislation;

–      the need to promote collective bargaining, especially in export processing zones;

–      the need for the draft Code of Labour Procedures to be subject to in-depth consultation with the most representative organizations of workers and employers; and

–      the Bill on Civil Service Reform (the Committee noted the Government’s indication that the Bill had been delayed, but that in July 2008 an intersectoral dialogue forum was established with a view to obtaining a bill that is adapted to the specific needs of the sectors concerned).

The Committee notes that the communications of the ITUC and the MSICG confirm the persistence of these problems. The Committee notes the Government’s indication that the subjects raised by the Committee have been discussed by the National Tripartite Commission for several years and that tripartite consensus has been achieved on some of them.

The Committee notes the Government’s indication in its report: (1) of its will to undertake and reinforce affirmative action to seek effective machinery for the protection of the interests and rights of active subjects of industrial relations in Guatemala; (2) that the Tripartite Commission has undertaken an analysis of the cases brought against the State of Guatemala in the Committee on Freedom of Association and has agreed to seek technical assistance with a view to reducing the list of cases; and (3) that the Tripartite Commission has examined the draft texts of legal reforms based on the recommendations of the ILO supervisory bodies, denunciations of cases, etc.

Furthermore, in relation to these matters, the Committee noted previously that, under the auspices of the high-level mission in 2008, the Tripartite Commission concluded an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, with the agreement calling for an examination to be carried out of the dysfunctions of the current labour relations system (excessive delays and procedural abuses, lack of effective application of the law and of penalties, etc.), and in particular of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as set forth in Conventions Nos 87 and 98, in the light of the technical considerations and substantive and procedural comments of the Committee of Experts. In this respect, the Government indicates that the Ministry of Labour and Social Insurance appointed a commission of lawyers under the Ministry of Labour with a view to formulating proposals for legislative reforms to the Labour Code, the Penal Code and the Act regulating the right to strike of State employees. The results of the work of this commission of lawyers have been forwarded to the members of the Tripartite Commission on International Labour Affairs for analysis and discussion.

The Committee has received the report of the first technical assistance mission (November 2008) following up the high-level mission (April 2008) and of a second technical assistance mission (January 2009), to which are attached the proposed legislative reforms that are before the National Tripartite Commission. The Committee firmly hopes that, with the technical assistance that it is receiving, the Government will be in a position to provide information in its next report on progress in relation to the various points referred to above.

Finally, the Committee notes the report of the high-level mission which visited Guatemala in February 2009, following the discussion in the Conference Committee on the Application of Standards in June 2008 of the application of Convention No. 87. The Committee welcomes the fact that the Government extended the terms of reference of the mission to problems relating to the application of Convention No. 98.

The Committee notes that in its report the high-level mission of 2009 reached the following conclusions:

Effectiveness of the judicial system

The issue of the effectiveness and finality of judicial procedures and compliance with court rulings constitutes the central issue of the frustration related to the effective protection of freedom of association, which affects all parties. A broad range of aspects needs to be addressed appropriately and adequately without delay. This includes the abuse of amparo proceedings and appeals (the revision of amparo proceedings is currently under examination), failure to comply with court rulings without fines or judicial penalties being applied and the incapacity of the courts to enforce the implementation of court rulings.

Effective implementation of freedom of association

Under these circumstances, the mission is bound to note the very low level of membership and of collective agreements and it notes the concerns expressed by workers’ organizations concerning the existence of difficulties in practice for the establishment of trade union organizations at the enterprise level and greater obstacles in export processing zones. All the social partners raised the question of the need to improve labour inspection, including through an undertaking to increase its budget significantly so as to allow the recruitment of new labour inspectors and the payment of appropriate wages, as well as the need for capacity-building and other training activities.

Futhermore, there is a general consensus on the need to provide information to all the social partners in relation to collective bargaining in which the participants have an equivalent level of decision-making power with a view to promoting the effective recognition of this right.

The Committee expresses its concern at the very high number of allegations of anti-union dismissals and acts in violation of the right to collective bargaining made by the ITUC and the MSICG. The Committee appreciates the information provided by the Government concerning the establishment of eight further labour courts in the city of Guatemala, thereby increasing their number by 100 per cent.

Recalling that all of the problems raised are very serious, the Committee requests the Government, in consultation with the most representative organizations of workers and employers: to undertake the necessary procedural and substantive reforms to resolve cases of anti-union discrimination and the slowness of the labour courts (including more effective and rapid proceedings and more dissuasive penalties); to promote collective bargaining in view of the worrying figures for the collective accords that are in force (according to the Government, 58 collective accords were concluded between 2008 and 2009, as in Guatemala collective bargaining takes place at the level of the enterprise or government institution); and the adoption of measures to improve labour inspection and to enable the courts to enforce rulings without delay. The Committee requests the Government to provide information in this respect and hopes to be able to able to note significant progress in the near future.

The Committee notes the Government’s indication that 64 new unions and 33 new collective labour accords have been registered. The Committee requests the Government to continue providing information on the number of unions and of collective accords, the number of members and the complaints made in 2008 and 2009 to the labour inspection services concerning violations of trade union rights.

Finally, the Committee notes the Road Map formulated by the Government to improve the application of Conventions Nos 87 and 98, the content of which is covered by the observation on Convention No. 87, and which includes objectives for legislative reforms and improvements in judicial procedures.

In view of the delicate situation relating to the application of the Convention, the Committee expresses the firm hope that the Government and the authorities in general will include compliance with the Convention among their highest priorities.