Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

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

A Government representative recalled the institutional events of May 1993 which had led to a change of government. The resignation of the Minister of Labour and Social Welfare prevented a reply being sent in time to the observation made by the Committee of Experts. The new President of the Republic was a defender of civil liberties and his election was made possible with the general agreement of all the political tendencies and with the support of the workers and the employers. He assured the Committee that the Government's comments on the Committee of Experts' observations would be submitted to the Office.

The Workers' members welcomed the information concerning the recent political developments and expressed the hope that the consolidation of the democratic system would allow for favourable developments to take place in the social domain. This Committee had already dealt with this case many times. It had been the subject of a special paragraph in its 1985 report and had also been discussed at length in 1991. While noting certain improvements, the observation of the Committee of Experts showed that the more important problems remained and listed the discrepancies that existed. Moreover, the observation pointed out that new problems had appeared with respect to the Convention resulting from new provisions of the Labour Code imposing new obligations, such as the sworn statement that was required from members of the executive committee of a trade union to the effect that they had no criminal record. A serious situation of violence and insecurity persisted in the country where trade unionists were threatened with murder or abduction, or just disappeared, with the participation of the army and death squads. In the context of a difficult transition towards democracy, this Committee had to remain firm in its demand for total and unconditional respect of freedom of association and had to ask the new Government to give effect quickly to the observations of the Committee of Experts by taking the measures that were necessary.

The Employers' members pointed out that although the legislation dating from 1992 had given rise to certain problems, as pointed out by the Committee of Experts in their report, there had been positive developments. Each discrepancy between the legislation and the Convention had been listed individually by the Experts. The Employers' members agreed completely with most of these points on which they felt some amendment to the legislation was required. However, they did not agree with the Committee of Experts' interpretation of the precise requirements with regard to the right to strike, which in their view could not be construed from the Convention in such specific terms. With regard to the recent political events, although it had been a very turbulent period in Guatemala, there was a new President who had said that he stood for the respect of human rights. They trusted that a comprehensive report would be sent by the Government in the future which would contain information on changes in line with the request made by the Committee of Experts.

The Workers' member of Guatemala indicated that the violations of freedom of association had only deteriorated until the events of May 1993 but that he hoped that the situation would improve in this domain, and in particular that this Convention would be fully respected. A tripartite agreement had allowed for the adoption in November 1992 of a law introducing major amendments to the Labour Code on several points. However, these reforms would be insufficient if the political will and decision to understand, to respect and to ensure respect of national legislation as well as of international labour standards on freedom of association was lacking.

The Employers' member of Guatemala emphasized the importance of the reform of the Labour Code described by the previous speaker. These amendments were the result of a tripartite dialogue aimed at adapting the provisions of the national legislation to the Convention. These amendments were very far-reaching, which recognized the impossibility of dismissing all the members of a union in the process of being established, reduced the number of workers required to establish a trade union and streamlined the procedures pertaining to the establishment of a trade union. With regard to the restrictions raised in the Committee of Experts' observation, it would be appropriate to ignore them given that most of them did not exist in practice. The provisions of the Labour Code mentioned by the Committee of Experts were not applied and there were no means of ensuring their respect. The Courts had not rendered any decision on the basis of these provisions of the Labour Code which remained a dead letter. At that time the situation Guatemala was very different from that which prevailed a decade ago. Important progress had been made which favoured dialogue and good tripartite understanding.

The Workers' member of Germany also welcomed the new political conditions which prevailed in the country but stated that he could not agree with the Employers' member of Guatemala who considered that there were no difficulties. With regard to this Convention in particular, the Committee on Freedom of Association in a recent report had expressed its serious concern and had clearly shown how the different provisions were not respected by the Government.

The Workers' member of Guatemala, although not denying the merits of the amendments introduced to the Labour Code in November 1992, once again stated that its application had to be ensured. Agricultural workers who wished to establish organizations of rural workers were accused of being subversive or guerrillas. In June and October 1992, secretary-generals of trade unions had "accidents", of which one was fatal. This meant that attention had to be paid to the manner in which trade union rights could be exercised in practice in the future.

The Government representative stated that she had taken due note of the observations of the speakers and assured this Committee that the next report due on the application of the Convention would contain all the comments that her Government would wish to formulate on this matter.

The Committee noted the information supplied by the Government representative on the institutional situation in her country. The Committee expressed the hope that it would soon be possible to eliminate the discrepancies between national legislation and practice on the one hand, and the Convention on the other hand, a matter which had already been discussed many times and which had been the subject of special paragraphs in previous reports. The Committee strongly urged the Government to adopt in the near future the necessary measures so as to bring to an end the very serious breaches of freedom of association that had been taking place in that country. The Committee requested the Government to supply in its next report detailed information on all measures taken or envisaged in this domain with a view to bringing law and practice into full conformity with the Convention, in accordance with the comments made by the Committee of Experts.