Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

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

A Government representative of Guatemala stated that his Government received with interest the observation made by the Committee of Experts on the application of Convention No. 87. He noted, however, that certain clarifications were necessary in the following general catego ries: (a) questions which are considered to be resolved by the new Constitution of the Republic leaving only the need to derogate these provisions by the creation of new laws as requested by the Committee of Experts; (b) the provisions which were already expressly repealed; and (c) a specific case where the Constitution is in contradiction with the Convention. The speaker pointed out that efforts had already been made, with the assistance of the ILO, to update the consolidated labour legislation and thus bring it into conformity with international labour standards. As a result of these efforts, the previous Government presented the Congress of the Republic with a draft of a substantive and a procedural Labour Code, as well as a basic Labour and Social Security Act. However, the legislative process discontinued due to the fact that various sectors of society had declared themselves against these draft texts. Nevertheless, the new Government had begun and implemented a Social Covenant as a general expression of tripartism, never before seen in the country. Within the framework of this Social Covenant, the Government was taking steps towards the institutionalisation and harmonisation of the country's labour legislation with international labour Conventions. The speaker pointed out that, taking into consideration the political circumstances which complicated the process of promulgation of a new labour legislation, the Minister of Labour and Welfare was promoting, on the basis of tripartite consultations, the approval of a certain number of transitional reform measures to the Labour Code. This would be done in a way so as to incorporate international labour standards in the law. In this way, these amendments, together with the draft codes based upon the tripartite consultation process under the Social Covenant, were part of a global strategy for improving the legislation. The speaker gave assurances that his Government would send all the documentation pertinent to this case to the Committee of Experts and the Minister of Labour and Welfare would see to it that the discrepencies which had been pointed out and which were not contrary to the Constitution of the Republic would be eliminated by the labour legislation once the Social Covenant was concluded. The Government representative recalled that the present Labour Code, which is now being revised, dated back to 1948 and the Constitution of the Republic entered into force in January of 1986. Many of the observations made by the Committee of Experts would be resolved by the Constitution. He concluded by stating that ILO assistance would be welcome to conclude the current reform of the labour law in the most technical and efficient way possible. This assistance was being discussed with the ILO.

The Workers' members noted the information provided by the Government concerning the changes made since the last time this case was discussed. They recalled the discrepancies noted in the Committee of Experts' report between the legislation and the provisions of the Convention. In this respect, they noted that there were six essential problems: (1) the strict supervision of trade union activities by the Government; (2) the dissolution of trade unions that have taken part in matters concerning electoral or party politics; (3) the limitation on the eligibility for trade union office to Guatemalan nationals only; (4) the requirement of a two-thirds majority vote for the calling of a strike; (5) the prohibition of strikes by agricultural workers at harvest time by workers in enterprises or services in which the Government considered that a suspension of their work would seriously affect the national economy (they recalled in this regard that the Committee of Experts had determined that the right to strike could only be limited for essential services, i.e. those services in which a strike would endanger the life, personal safety or health of whole or part of the population); and (6) the heavy prison sentences for those who carry out acts intended to paralyse or distub the functioning of enterprises contributing to the development of the national economy with a view to jeopardising national production. They noted that the Government representative's statement had demonstrated that more progress was made than reflected in the Committee of Experts' report as apparently the draft Labour Code was presently being discussed in the legislature. Finally, they requested a clarification from the Government representative concerning the pursuance of tripartite consultations to resolve these problems.

The Employers' members recalled that this case had been discussed several times in the early 1980s and that three years had passed since it was last discussed. They generally associated themselves with the comments made by the Workers' members, but declared their reservation concerning the right to strike as they were of the opinion that the details concerning this right could not be deduced from Convention No. 87. In their opinion, this case also demostrated that the formula defining essential services was very narrow and did not take into consideration the particularities of a given case. They wondered whether, in a country which depends on agricultural products, it would not be useful to consider harvesting as an essential service. In spite of this particular point, they note that there were still a number of contradictions between the legislation and the provisions of the Convention. They noted the Government representative's indication that amendments to the legislation and in particular to the Labour Code were being elaborated. They recommended that the Government be asked to accelerate this process and to provide these texts as soon as possible so that the Committee of Experts could supervise the application of the Convention.

The Government representative of Guatemala welcomed the interest reflected in this type of concrete questioning. He pointed out that, as concerned the strict supervision of trade union activities by the Government, the participation in political parties of trade union leaders, the problems concerning eligibility of non-nationals for trade union office, the majority necessary to call a strike, the prohibition of strikes by agricultural workers and strike in essential services - these elements and circumstances were taken into account in the Constitution of 1986. The restrictive standards bearing upon freedom of association had been repealed or derogated by this later law. The Government would make an effort to ensure that the process followed for reviewing the legislation would bring the country standards into full conformity with the Convention. The Government respected certain trade union rights which were discretionary, such as the election of trade union officers. As concerned the sanctions against those who paralyse the national economy, he pointed out that the Constitution was very clear about the types of conduct which were illegal and the minimum rights guaranteed to the worker, including the right to strike. As regards the question concerning whether an agricultural country, such as Guatemala, could restrict the right to strike of agricultural workers, he pointed out that his country adopted the universally recognised definition of the international bodies on essential services which only limited the right when it could endanger the health, safety and welfare of the population. He reitered that in his country there was the conviction that the legislation should be changed so as to be in compliance with international labour Conventions, but that these changes should be made in a spirit of tripartism and consensus in conformity with the well-being of all sectors of the country.

The Workers' members thanked the Government for the clarifications given to the questions raised and requested that the new legislation be sent to the Office for review as soon as possible.

The Committee took note of the detailed information communicated by the Government representative and the discussion which had taken place in the Committee. It recalled that the Committee of Experts had been asking the Government for a number of years to remedy the serious divergencies which exist between national law and practice and the Convention. Taking note that the draft Labour Code, which was to take into account the observations made by the Committee of Experts, was in the process of being adopted by the Congress of the Republic, the Committee expressed the firm hope that the Government would report in its next report on the concrete measures taken to bring its law and practice into conformity with the requirements of the Convention which it had ratified almost 40 years ago.