Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

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

The Government supplied the following information:

Article 2 of the Convention (Right of workers and employers to establish and join organizations). The Government indicated that the substantive and procedural conditions are contained in Title 6 of the Single Chapter of the Labour Code and in Government Agreement No. 639-93. There is no specific legal provision covering special categories of workers.

Article 3 (Right of workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities). The law provides that trade unions are permanent associations of workers or of employers or of self-employed professionals or tradespersons established exclusively for the study, improvement and protection of their economic and social interests.

Article 4 (Dissolution and suspension of organizations by administrative authority). Dissolution is governed under sections 226-229 of the Labour Code.

Article 5 (Right of organizations to establish federations and confederations and to affiliate with international organizations). Section 233 of the Labour Code provides for the establishment of federations and confederations, and states that they can be at the national or regional level or according to branch of activity. This provision does not provide for membership of international organizations.

Article 6 (Rights of federations and confederations of workers' and employers' organizations). The establishment of federations and confederations is governed by the same provisions as those concerning the establishment of trade unions (Title 6, Single Chapter of the Labour Code).

Article 7 (Legal personality of workers' and employers' organizations and of their federations and confederations). This matter is dealt with under Title 6, Single Chapter of the Labour Code.

Article 8 (Exercise of the rights of workers, employers and their respective organizations). The requirements under this Article are taken into account particularly under the following constitutional provisions: articles 5, 24, 28, 29, 33, 34, 35, 138 and 139.

Article 9 (Trade union rights in the armed forces and the police). There is no relevant legislation in force. In accordance with custom and national practice, there is a presumption against the establishment of trade unions in the armed forces and police. With regard to the 1993 comments of the Committee of Experts, the Government will take action shortly to eliminate the divergencies indicated. However, the legislative function is exercised exclusively by Congress.

A Government representative referred to the written report provided by the Government. She expressed her appreciation and recognition for the work developed by the ILO, particularly by the present Committee. She indicated that she had appeared personally in order to demonstrate the Government's commitment to obtaining a solution to the difficulties which persisted in this matter, notwithstanding the efforts already realized. Guatemala had been affected by a terrible armed conflict during the last 35 years, as a consequence of the cold war and of internal conditions. The Government was seeking peace through the signing of accords to resolve differences. In this difficult process, Guatemala was being assisted by friendly nations and by the United Nations, which were acting as mediators in the process and which moreover were collaborating through MINUGUA in the monitoring of the global accord on human rights. During his recent visit to Guatemala, the President of Mexico recognized, on behalf of the friendly countries involved in the peace process (Norway, United States, Spain, Mexico, Colombia and Venezuela), the reconciliation work of the Government of the President of the Republic of Guatemala, and emphasized the importance of counting on the help of the international organizations and agencies to consolidate the desired peace in Guatemala. Additionally, the speaker described the importance of the presence of the ILO regional office in Central America which had permitted the improvement of relations with the ILO and at the same time enhanced the use of consultants and technicians to modernize the Ministry of Labour and make it more efficient.

Moreover, the Government emphasized the valuable work of the direct contacts missions to Guatemala, the results of which were appropriately recognized. The mission provided the opportunity for dialogue with the different sectors and evidenced the policy of the President of the Republic to open the country to collaboration with the international community in order to develop together solutions to the social problems of the country.

Concerning the observations of the Committee of Experts on the Application of Conventions and Recommendations, the speaker stated that Guatemala had already completed the reports which were referred to in the report of the Committee of Experts. Those reports had been delayed due to the lack of employees in the Ministry of Labour who were familiar with this specialized area. In the future, the Government would take measures to ensure that the reports arrived on time.

Concerning the observations formulated in relation to the Convention, the speaker stated that since the 1970s four attempts had been made to develop a new Labour Code in Guatemala, in place of the Labour Code of 1947, and that committees had been formed to develop each of these drafts, but without results. In December 1992, the modification of certain articles was achieved with the promulgation of Legislative Decree No. 64-92. Nevertheless, such modifications were minimal and in non-controversial areas, in comparison to the total reforms proposed. Regrettably, the propagation of a new Labour Code or reform of the existing Code always encountered opposition in a polarized society such as Guatemala. Consequently, it was difficult to complete accords, largely due to the persistence of internal armed conflicts. In spite of that, the modifications introduced in 1992 were elaborated with the participation of the workers' and employers' sectors, and of the Government. The Government believed that this exercise needed to be repeated. After the failed coup, which occurred in May 1993, a process to streamline the machinery of the State was initiated and in 1994 there was an excessive purge of Congress. The present delegates were due to turn over their posts in January 1996, making it difficult to adopt legislative reforms in the immediate future. None the less, the Ministry of Labour would convene a meeting with the employers' and workers' sectors to analyse the recommendations of the Committee of Experts. Such a situation should not be an obstacle for the Ministry of Labour and Social Security, which had already taken measures to promote freedom of association. In October 1993, only two months after assuming its duties, the Ministry sponsored various seminars and exercises intended to reduce the administrative steps required to obtain authorization for unions, and eradicated unnecessary formalities which had amounted to over 127 bureaucratic steps. The procedure was simplified significantly and eliminated the obligation to comply with the statutes propagated by the President of the Republic. Moreover, new reforms were introduced recently to facilitate a more straightforward procedure. This reform established a process requiring approximately 55 days to obtain legal recognition of a union (in accordance with the provisions of the revised Labour Code).

Lastly, the speaker reiterated the political will of the President of the Republic to continue taking measures and adopting actions to facilitate the existence of a culture of tolerance and to consolidate a lasting and firm peace through political accords based on dialogue and compromise. Only then would it be possible to dedicate all of the resources of the country, human as well as material, to solve the significant challenges which stem from underdevelopment, such as health, work, education and the modernization of production. Guatemala needed the understanding and help of the international community because it was easy to confuse the scarcity of resources with the absence of policies. Success must be obtained in cooperation, because peace was not only the absence of war.

The Workers' members appreciated the information provided by the Minister of Labour concerning the difficult political situation of the country and the initiatives taken to adopt a new Labour Code. It was recalled that the case had been discussed in 1991 and 1993, and that a special paragraph had been adopted firmly insisting that the Government send detailed information on measures taken to bring the legislation into conformity with the Convention; that it eliminate the discrepancies between legislation and practice on the one hand, and non-compliance with the Convention on the other; and that it take the necessary measures to prevent serious attacks on freedom of association, such as had occurred. At that time, the Government representative made promises to that effect. Nevertheless, the Committee of Experts did not receive the Government's report on time; and when it did report, the Government did not provide any new information but rather limited itself to expressing vague intentions to take steps to eliminate the aforementioned discrepancies. This was regrettable, given the grave problems which existed in the lack of conformity of the legislation with the Convention. Furthermore, the Committee on Freedom of Association, upon examining various cases, had identified the flagrant violations of freedom of association in practice: the difficulties unions faced in organizing and operating; dozens of cases of threats, aggression, assassinations, disappearances and dismissals of union activists. Paramilitary groups, police, and directors of national and international enterprises were clearly responsible, but were allowed to act with impunity. The sectors most affected were agriculture, forestry, and the free enterprise zones. Additionally, the employers promoted the creation of "solidarist associations" to weaken trade union organizations and undermine the right of collective bargaining (reference was made to the case of four enterprises in particular); and it was estimated that the members of such "solidarist associations" numbered in the thousands.

In addition, the Workers' members emphasized the gravity of the problems, which were highlighted in the report of the Committee of Experts, which made difficult the creation of unions, the free election of representatives (a worker must have been active in the enterprise and without a prior criminal record), and the exercise of the right to strike (the excessive requirements made impossible the lawful exercise of the right). Although in 1992 improvements had been made in the law, the formation of unions still tended to be a complicated process. The Committee should adopt firm conclusions, given the gravity of the situation and the fact that the Government had not completed the promises which it previously made to the present Committee. It was also necessary to: guarantee and protect the physical and moral integrity of union activists; increase the number of labour tribunals; reinforce labour inspections; facilitate the system for forming unions and eliminating administrative procedures; and collaborate in the development of a stable and efficient system of labour relations, where freedom of association was not violated by enterprises or the public authorities. The Workers' members hoped that in the near future tangible results could be obtained.

The Employers' members agreed with most of the points made by the Workers' members. This case had been dealt with a total of six times in the course of the 1980s, and then again in 1991 and 1993. This year, the Committee of Experts did not have any report from the Government and therefore had no option but to reiterate its previous observation, despite the fact that in 1993 the present Committee had concluded by asking urgently for a full report on any progress made. On that occasion, the Government had promised that things would change very soon, but these promises were linked to the appointment of the new President of Guatemala, who was to personally ensure the fulfilment of the changes.

In fact, not very much had changed since then. The comments made by the Government representative on the whole dealt with the general political situation and the problems the country had encountered over the past 30 years. It referred to some changes which had occurred but which were not the object of observations of the Committee of Experts. The Workers' members had already listed the main points of concern: supervision of trade union activities; the nationality requirement for exercising union office; the requirement that workers be active in the enterprise in order to exercise union office; and the requirement that workers demonstrate that they did not have a criminal record. These demands certainly could not be reconciled with the terms of Convention No. 87, so here too the Employers' members supported the call for change, which was made in 1991, in 1993, and repeated now.

The Employers' members clarified that it did not support the demands made in connection with the right to strike because they could not be derived from the terms of the Convention and contemplated the right to strike in a very specific way which the Employers' members could not accept. But as for all other points, the Employers' members agreed fully with the Committee of Experts.

So what had become of the promises which were given in 1993? The present Committee said at the time that it hoped that the new political leadership would introduce changes for the better because the new President had the reputation of being somebody who was a great defender of human rights. But the Committee of Experts had not even received on time a detailed report from the Government and the information received later, which had been provided to this Committee, was not very impressive and did not provide any concrete information, and again contained a vague promise to act in the future. The Government representative stated that it was extremely difficult to achieve any change in the short term. This was less than what had been promised in 1993. Undoubtedly, the Government had good intentions, but it was evident that change came about very slowly. The Committee should adopt very firm conclusions, as the Workers' member had demanded, and should demand a report on any measures taken. The Employers' members indicated that they reserved the right to request examination of this case next year.

The Workers' member of Guatemala declared that the statement made by the Workers' members fitted reality and that violations of the Convention at the level of the legislation had existed since 1952, the date of Guatemala's ratification. Furthermore, the Government had not submitted a report on time to the Committee of Experts, and when it did (in May 1995) it did not consult the workers' organizations. The criticisms of the Committee of Experts concerned restrictions on freedom of association, on the right to strike, and on collective bargaining, all of which existed in legislation as well as in practice. The speaker referred to various recent cases of attempts on the lives of union activists, and cases which illustrated the ineffectiveness of the labour courts concerning problems of collective bargaining. The Committee of Experts should continue to examine these problems on an ongoing basis. This would be a significant help in the actual peace process, which required respect for economic, social and political rights, to be able to solve the causes of the armed conflict.

The Workers' member of Colombia expressed solidarity with the Guatemalan union movement and observed the painful situation which the workers endured. It was disturbing that the Government had not sent its report on time, and that it had sought to excuse itself by invoking the search for peace. Peace required respect for the lives of workers and union activists, and respect for other rights pertaining to the organization of workers. The protection of the right of unions to organize, which existed in Guatemalan legislation, was more formal than real. It should be observed that the Government had failed to act firmly when enterprises proceeded with massive anti-union dismissals, or when obscure forces repeatedly assassinated or kidnapped activists. The speaker referred to specific cases of assassinations and kidnapping of union activists. The speaker concurred with the statements of the Workers' members and firmly requested that the Committee formulate stronger declarations. Lastly, the speaker requested that the ILO continue to follow all of the issues related to freedom of association.

The Workers' member of the United States stated that the observation of the Committee of Experts concerning Guatemala appeared relatively bloodless in its legalisms, but the facts in Guatemala were anything but bloodless. There existed a horrible record of the role of police, paramilitary and death squads in what the archdiocese in Guatemala City had described as the "systematic practice" of repression against the trade union movement. What amendments had been made to the 1947 Labour Code had rarely been enforced so that the protection for organizing that appeared in print was either ignored or misapplied. There existed a practice of repeated and horrific reprisals. For example, since the present Committee last met, the leader Edi Conde was abducted by four armed men in police uniform and interrogated, beaten and threatened with death unless he left the country. The AFL-CIO, with the Postal Telegraph and Telephone International, helped the Secretary-General of the Energy Workers' Federation of Guatemala to go to El Salvador to seek refuge and safety. In March, the Finance Secretary of the union at the "PCA Maquiladora" enterprise was cruelly murdered. UNSITRAGUA alone had lost eight leaders and members since mid-1994. When the Coca-Cola bottling plant or other employers claimed that the workers lacked the majority necessary to form a union, the present Committee should not focus only on the fact that the Labour Code required a two-thirds majority for a strike, in violation of the Convention, but also on the existing atmosphere of violence and intimidation so extreme that it did not require a cynic to say that many killings of union members prevented unions from reaching the required quota for registration. In light of the lack of freedom of association, it was time for this Committee to firmly insist that Guatemala bring its legislation and its practice into conformity with the Convention.

The Workers' member of Iceland, speaking on behalf of the Nordic Workers' members, stressed that everyday reports were received on acts of violence aimed at disturbing the functions of trade unions in Guatemala. While this was going on, it was confirmed time after time that no action was being taken by the authorities in order to combat the paramilitary groups, such as the "Jaguar Justiciero", which were responsible for these acts of violence. Guatemala had ratified a total of 67 Conventions, 62 of which were supposed to be in force, including Conventions No. 87 and No. 98. While reading the list of Guatemalan trade unionists who had lost their lives in the last few years as a result of their struggle to better the condition of workers in Guatemala, and observing that nothing was being done by the authorities to prevent it, it was almost impossible to see that the Government of Guatemala had meant a word of what it said by ratifying the human rights Conventions. Freedom of association had little meaning under circumstances such as this. Ratifying Conventions without taking action to implement them in practice was an abuse of the ILO and a disgrace. However, the speaker noted that the representation of Guatemalan workers at the present Committee this year included an independent trade union organization, and expressed the hope that this was a sign of better times.

The Workers' member of Panama condemned the situation in Guatemala relating to labour and union rights; the difficulty of maintaining unions under such conditions, and, above all, the crimes committed against union activists. The speaker indicated that the workers' organizations from Panama had visited the Embassy of Guatemala to demand respect for the right to life of the workers, as well as the protection of other rights. The ILO should continue to examine all of these issues to ensure that the Government fulfilled the commitments which resulted from the ratification of the Convention.

The Government representative took note of the statements which were made and regretted the cases of violence referred to by various speakers. Many of those cases were being examined by the direct contacts mission which visited the country, and would be examined by the Committee on Freedom of Association, whose conclusions the Government awaited. The speaker indicated that the Government had already submitted all of the reports required by the Committee of Experts. She reiterated the Government's wish to convene a meeting with workers and employers to examine the recommendations of the Committee of Experts concerning the Convention, with the objective of bringing the legislation into compliance with the Convention as soon as possible.

The Committee noted the written communication and oral explanations provided by the Government representative, as well as the discussion that took place thereafter. The Committee regretted that, in spite of the discussions before the present Committee in 1993 and the assurances given by the Government at that time, the Government's report was not received in time to be examined by the Committee of Experts. The Committee of Experts and the present Committee had, for a number of years, urged the Government to eliminate the discrepancies between national legislation and practice and the Convention, particularly regarding the need to lift the limitations imposed on the right of trade unions to organize their activities and to elect their representatives. The Committee emphasized that these matters had already been discussed many times, had been examined by direct contacts missions, and had been the subject of a special paragraph in a previous report. Consequently, the Committee urged the Government to adopt in the very near future the necessary measures, in legislation and in practice, to ensure that this fundamental Convention, ratified more than 40 years ago, was applied in letter and spirit. It called upon the Government to report in detail to the Committee of Experts on the actual progress made in terms of specific steps taken to bring both legislation and practice into conformity with the requirements of the Convention.