Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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 that took place in the Conference Committee on the Application of Standards in 2010 and the 11 cases before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2708, 2709, 2768 and 2811). In its previous observation, the Committee took note of the high-level mission which visited the country in April 2008 and of the tripartite agreement signed during the mission with a view to improving implementation of the Convention. It also noted the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009 and a final mission to provide assistance to the Tripartite Commission in formulating the road map to address the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee noted that in the end there was no consensus between the social partners and that the Government prepared the road map on its own. The Committee notes that the Government states in its report that in April 2010 a training course was held on international labour standards for staff of the Attorney-General’s Office, judges, magistrates, and staff of the Human Rights Ombudsman’s Office and of the Ministry of Labour, with ILO technical assistance. The Committee notes that the Government has agreed to the mission, requested in June 2010 by the Conference Committee on the Application of Standards, involving the visit of an important and recognized personality with high-level ILO support to examine outstanding issues and make recommendations. The Committee notes the Government’s suggestion that the mission be held in early 2011.

Acts of violence against trade unionists

For several years, in its observations the Committee has noted acts of violence against trade unionists that have gone unpunished, and has asked the Government to send information on developments in this regard.

The Committee notes that, at the proposal of a high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which there are to be evaluations 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”.

In its previous observation, the Committee noted that both the International Trade Union Confederation (ITUC) and the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) refer in their comments of 2009 to serious acts of violence against trade union leaders and members during the period 2008–09, and report a climate of fear and intimidation the aim of which is to undermine existing trade unions and prevent the establishment of new ones. Both organizations also emphasize the deficiencies in the labour inspection system and the crisis in the legal system. The Committee expressed the hope that, in the context of the tripartite agreement concluded during the high-level mission, all 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, and the mechanism for rapid intervention in cases. The Committee notes with regret that there is nothing in the Government’s report to suggest that a tripartite review of these matters has been held, and once again strongly requests the Government to take all available measures to ensure that these issues are examined without delay by the abovementioned Tripartite Commission.

The Committee notes the extensive comments of 30 August 2010 on the application of the Convention, submitted by the MSICG. It notes that according to the MSICG, in 2009 and 2010 there have been numerous acts of violence against trade union leaders and trade unionists, ranging from murders (47 since 2007, seven of them in 2010), death threats and acts of intimidation, to abductions, torture or armed assault (with guns or knives); there has also been unauthorized entry of homes of trade unionists and trade union premises. According to the MSICG, in some cases the State did not authorize the security measures requested by the persons threatened and the Office of the Public Prosecutor is not investigating all the cases since some complaints have not even been entered in its database. The MSICG also cites instances of obstacles or administrative hurdles to the establishment or running of trade unions, and of unions being destroyed while organizing. More than 20,000 public sector workers have no employment relationship but a civil contract for professional services and, hence, no trade union rights. Furthermore, trade union activity has been criminalized, with penal action being brought against trade unionists for holding peaceful demonstrations and attacks on trade unions in anti-union publications or through smear campaigns. According to the MSICG, there have also been numerous instances of trade unionists being transferred, dismissed or removed from office on anti-union grounds; there are also acts of interference by employers. Furthermore, to the detriment of existing unions, the authorities have promoted “parallel” workers’ organizations that are under their control and it is the latter that send delegates to the Tripartite Commission though they have little claim to representativeness. As to legal action, the MSICG emphasizes that slow proceedings with long delays continue to be a problem and that the legal reforms requested by the ILO have not been adopted. Lastly, the MSICG points out that this anti-union climate is reflected in the membership rate (2.2 per cent of the economically active population, of which the public sector accounts for 87.5 per cent).

The Committee observes that many of the assertions in the MSICG’s communication were submitted to the Committee on Freedom of Association in its meetings of November 2009 and 2010. In its conclusions, the Committee on Freedom of Association noted with grave concern that the allegations presented in this case are extremely serious and include 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 unionist’s family member, obstacles to granting legal status to unions, the dissolution of a union, criminal proceedings for carrying out trade union activities, major institutional failures with regard to labour inspection and the functioning of the judicial authorities that have created a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failure to comply with reinstatement orders issued by the courts) and in criminal matters (see 355th report, Case No. 2609, paragraphs 858 et seq.).

The Committee is bound to note that, in terms of violence against trade unionists, the failures in the functioning of the penal justice system and the impunity of offenders, the situation continues to grow worse. The high-level mission of February 2009 noted that in recent years, despite the increase in violence against trade unionists (according to information from government officials), there have been no effective trials or convictions. The high-level mission heard testimony of the general lack of independence of the judiciary and government bodies as regards criminal cases. The Government informed the high-level mission that the situation of violence was generalized and denied any state policy against the trade union movement.

The Committee had noted that the high-level mission of February 2009 reported that a significant increased was needed in the capacity and budget of the Office of the Prosecutor General of the Nation, allowing the number of prosecutors and investigators to be increased substantially; the mission suggested that additional resources be allocated to existing programmes for the protection of trade unionists (44 trade unionists currently benefit from protection measures) and witness protection programmes, and that these programmes be properly coordinated. The high-level mission was of the view that measures should be taken actively to discourage any stigmatization of trade unions and the trade union movement that associates trade union activities with criminal acts. The high-level mission reported a very low membership rate and few collective agreements. According to the MSICG’s comments, this situation has not changed.

The Committee requests the Government to reply in detail to the MSICG’s comments of 2010. The Committee notes the statements made by the Government to the Committee on the Application of Standards to the effect that 30 new inspectors have been recruited to add to the strength of the labour inspectorate, that 70 unions and 45 collective labour accords were registered in 2009 and that most of the murders reported were unrelated to trade union activities.

The Committee wishes to refer to the conclusions drawn by the Committee on the Application of Standards in June 2010, which read as follows:

The Committee noted that the Committee of Experts continued to raise with concern the following issues: numerous serious acts of violence, including murders and threats against trade union members; the stigmatization of trade unions; and legislative provisions and practices that were not in conformity with the rights set out in the Convention. The Committee of Experts had also noted the ineffectiveness of criminal procedures in relation to acts of violence, excessive delays in the judicial procedures and the lack of independence of the judicial authorities which was giving rise to a serious situation of impunity.

The Committee noted the indication by the Government representative that the situation of violence and impunity was generalized and did not exclusively affect the trade union movement. The Government had requested the support of the United Nations to combat impunity and the International Commission against Impunity in Guatemala (CICIG) had been established for that purpose. The Government had requested reports to determine whether or not the murders of trade unionists referred to were due to reasons related to trade union activities. The Government had on many occasions requested ILO technical assistance in relation to all of the problems raised, including violence, impunity and the legislative changes requested, as well as the drawing up of the roadmap. The Government representative stated that tripartite social dialogue had been taking place in the National Tripartite Commission and that four tripartite dialogue round tables had been created at the regional level. He indicated that, following the latest ILO high-level mission, inter-institutional coordination mechanisms had been strengthened. In addition, action had been undertaken for the reinstatement of workers in export processing zones. Training activities had been carried out and the decision had been taken to establish two labour training schools. He stated that, although measures had been taken to reinforce the labour inspection services and the unit in the ministry responsible for relations with the ILO, further technical assistance from the ILO was needed.

The Committee noted that this was an important case that had been discussed for many years and that the Government had received numerous technical assistance missions with a view to bringing the law and practice into conformity with the Convention.

The Committee noted with deep concern that the situation of violence and impunity appeared to have worsened and recalled the importance of guaranteeing on an urgent basis that workers were able to carry out their trade union activities in a climate free from fear, threats and violence. It noted further with concern that the Commissioner of the CICIG resigned on 7 June 2010. The Committee urged the Government to take the necessary measures to ensure the effective operation of schemes for the protection of trade unionists and defenders of freedom of association and other human rights.

The Committee noted with concern that the Government had not shown sufficient political will to take action to combat violence against trade union leaders and members and to combat impunity. The Committee emphasized the need to make substantial progress in sentencing in relation to acts 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 requested the Government to intensify its efforts to bring an end to impunity, including by considerably increasing the budgetary resources allocated to the judiciary, the prosecutors, the police and the labour inspectorate.

Also observing with concern the generalized climate of violence, the Committee recalled that freedom of association could not be exercised in a climate where personal safety and basic civil liberties were not guaranteed. The Committee urged the Government to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunals for protection against acts that were in violation of fundamental rights.

The Committee points out that in the road map it prepared at the request of the Committee on the Application of Standards in 2009, the Government referred to the need to pay greater attention to following up, investigating and concluding cases of violence against trade unionists and that affirmative action was accordingly needed in the interests both of effective and periodical reporting to the Committee on Freedom of Association and of inter-institutional coordination allowing relevant information to be exchanged and brought to the attention of the ILO supervisory bodies. The Government stated its intention of strengthening the Ombuds Unit (unidad de procuración) of the Directorate of International Affairs by appointing qualified staff to deal exclusively with these issues, endowed with the necessary resources to perform their duties and respond immediately to the particular circumstances of each and every case under investigation. In addition, the Government wished to draw up an annual schedule of meetings between the Ministry of Labour (Ombuds Unit of International Labour Affairs) and the Office of the Attorney-General in order to have a framework for ongoing work between the two institutions. Furthermore, the Directorate of International Labour Affairs will draw up an inventory of cases already concluded so as to bring them to the attention of the Committee on Freedom of Association. Furthermore, on the matter of the inter-institutional coordination, the Government stated that the Multi-Institutional Labour Committee for Industrial Relations in Guatemala is being reactivated and will draw up a list of entities that have not yet been included but that are closely involved with these issues.

The Committee notes that in its report the Government states that it is ready and willing to give effect to the content of the Convention. It indicates in this connection that:

–      the Ombuds unit of the Directorate of International Affairs has been reinforced for the purpose of strengthening the ILO supervisory bodies and meeting their requirements thanks to the appointment as from April 2010 of an attorney-adviser and an ombudswoman, which has eased the flow of information on cases reported. Specifically, since then, 127 written requests were sent between April and August 2010, seeking information from various prosecution services of the Office of the Attorney-General, and from magistrates courts, courts of first instance and appeals chambers of labour courts, the Office of the Ombudsman, the General Inspectorate of Labour and the technical and legal advisory departments of the Ministry of Labour and Social Insurance, concerning complaints lodged by workers and trade union organizations. On the basis of this information, the Government sent the Committee on Freedom of Association 37 reports allowing action to be taken on specific objections raised in the cases;

–      assistance from magistrates of the Supreme Court of Justice was obtained at the 99th Session of the International Labour Conference, held in Geneva from 2 to 18 June 2010, the aim being to enable a judicial body to become acquainted at first hand with the application of Convention No. 87 and complaints to the Government of Guatemala on violations of that Convention; and

–      a request was made to the Attorney-General and the Council of the Attorney‑General’s Office in November 2009, and reiterated in January 2010, to hold a special meeting with the Tripartite Commission on International Labour Affairs in order to address the topic “Ensuring effective investigation and trial of those responsible for acts of violence and threats against trade unionists” and to secure “progress in the establishment and strengthening of the public prosecution service for crimes against trade unionists”, which has not as yet been held because selection of a new Public Prosecutor is still pending.

The Committee 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 intimidation; 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 points out that excessive delays in proceedings and the absence of judgments 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 the foregoing, although it has been informed that the Government has sent replies to the Committee on Freedom of Association regarding the cases that depend on the proper working of the Multi-Institutional Committee and on Parliament’s willingness – according to the Government – to increase budgets in the legal system, the Committee concludes with regret that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and trade unionists and to combat impunity. The Committee observes that, according to the Government’s report, the meeting that the Attorney General was requested to hold with the national Tripartite Commission has not taken place. The Committee expresses deep concern at the lack of significant progress, particularly in view of the repeated ILO missions and the very clear and specific recommendations made by the ILO’s supervisory bodies. It is particularly concerned that the Government has provided no comprehensive information and up-to-date statistics on acts of violence against trade unionists, the stages reached in criminal trials and the identification and conviction of offenders; nor has it provided information on any increase in budgets for the state bodies responsible for combating violence and impunity.

The Committee once again firmly requests the Government: (i) to ensure the protection of trade unionists under threat of death; (ii) convey to the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate murders and crimes committed against trade unionists so as to punish the perpetrators; (iii) to ensure the allocation of sufficient resources to these objectives with the consequent increase in human and material resources, to ensure coordination between the various state bodies who may be called upon to intervene in the judicial system, and to ensure training for investigators; and (iv) to give priority to these matters in government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the serious problem of impunity for crimes against trade unionists.

Lastly, the Committee again expresses its deep concern at the acts of violence against trade union leaders and members and reminds the Government that trade union rights can be exercised only in a climate that is free of violence. The Committee expresses the firm hope that the Government will take all necessary measures to guarantee full respect for the human rights of trade unionists and will continue to apply the protection machinery to all trade unionists who so request. It also requests the Government to take the necessary steps without delay to conduct the necessary investigations to identify 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 report on all developments in this regard. The Committee expresses its concern that the information provided by the Government refers only exceptionally to cases in which those responsible have been identified and punished, and emphasizes the need for considerable reinforcement of the criminal justice system.

Legislative problems

The Committee has for several years been commenting on the following provisions, which raise problems of consistency with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have 50 per cent + 1 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 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, and the comments of the MSICG.

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 breach of due process, failure to enforce the law and 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. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes that this assistance has already started.

The Committee observed that the road map set deadlines for the submission of bills pertaining to the legislative amendments requested by the Committee of Experts (the deadline was set for 28 February 2010). It reminds the Government in this connection that a series of proposals to address the legislative problems was drawn up by the national Tripartite Commission in the first quarter of 2009 with the ILO technical assistance missions.

The Committee observes that, according to the road map drawn up by the Government in December 2008:

We have appointed a Lawyers’ Commission in the Ministry of Labour with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of that Commission was already notified to the previous ILO technical assistance mission.

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

In addition to the above, an analysis has also been undertaken of the manner in which the right to strike of workers is penalized by the Labour Code and, taking into account the CEACR’s recommendations, a study has already been prepared for submission to the state bodies for a decision.

We have also planned the strategy that we will apply to achieve the objectives set.

The Committee observes that nothing in the Government’s report allows it to note progress in legislative matters. The MSICG likewise indicates that there has been no progress.

The Committee notes that, in the Committee on the Application of Standards, the Government merely referred to certain measures relating to the Civil Service Bill. The Committee notes with regret that there has been no significant progress with the legal reforms requested. The Committee is of the view that greater efforts are called for, and hopes to note progress in the near future. It expresses the firm hope that, with technical assistance from the ILO, the Government will be in a position to provide information in its next report on positive developments in the various issues raised.

Other matters

The maquila sector. For years, the Committee has been noting comments submitted by trade union organizations on serious problems in applying the Convention that relate to trade union rights in the export processing sector.

The Committee noted the comments of 2009 by the ITUC asserting that it is impossible to exercise the right to organize in export processing zones owing to 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 breaches of the law or failure to apply it in this sector. According to the MSICG, the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee noted 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 or even before. With regard to trade union membership, according to the administrative authorities there are six unions and a membership of 562 in the export processing sector, which employs 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 export processing zones and hence a problem in applying Conventions Nos 87 and 98”. In its report, the Government states that there are seven active trade unions in maquila and textile enterprises and one approved collective accord for the period 2008–10.

According to the Government, in 2008 the General Inspectorate of Labour dealt with 33 complaints relating to freedom of association and protection of the right to organize. Some cases were settled by conciliation, others are still pending. In 2009, the General Inspectorate of Labour dealt with 30 complaints relating to freedom of association, most of which are still being processed. In 2010, the General Inspectorate of Labour has dealt with seven complaints on freedom of association, all of which are still being processed. Lastly, the Government appends a document, dated 15 January 2010, addressed to the Public Prosecutor and the Attorney-General.

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, size of their membership, number of collective agreements and their coverage, complaints of violations of trade union rights and decisions taken by the authorities, and the number of inspections). The Committee expresses the hope 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 requests the Government to provide information on this matter. It requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector to the national Tripartite Commission, and to supply information in this regard.

National Tripartite Commission. The Committee notes that in this Commission there are problems with the recognition by all concerned of the workers’ representatives, due to a division in UNSITRAGUA. The Committee notes that the Government has requested ILO technical assistance in this matter. The Committee hopes that the Government will receive the requested technical assistance.

[The Government is asked to supply full particulars to the Conference at its 100th Session and to reply in detail to the present comments in 2011.]