Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

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

A Government representative, Minister of Labour and Social Protection, recalled that on 29 December 1996 the Accords on a Firm and Lasting Peace had been signed by the President of the Republic and the National United Guatemalan Revolutionary Front (URNG). The Peace Accords, which were brought about under the auspices of the United Nations and the ILO, permitted an improvement in relations between workers and employers. The dialogue which had developed had helped to resolve differences, and was at the heart of the creation of the tripartite Committee of International Labour Relations which operated in the country. The speaker was grateful for the role that the United Nations and the ILO had played in negotiating the Peace Accords. The commitments contained within the framework of the Accords allowed the Ministry of Labour to modernize, strengthen, and decentralize the General Inspectorate of Labour and Social Protection Directorate, particularly in the areas of health and social security in work, and of labour relations. These commitments included the translation of the labour laws into the Mayan languages, amendment of the labour legislation, training of 200,000 workers, and the use of dialogue to resolve conflicts between workers and employers. The tripartite committee raised awareness, resolved many conflicts, and promoted bipartism. Within the framework of this Committee, draft legislation was being examined which would be sent at the appropriate time to the Congress for consideration. The workers and employers played an outstanding role in consolidating tripartism, brought about with the assistance and collaboration of the ILO's multidisciplinary team based in Costa Rica. The Government proposed to the Committee of Experts that it elaborate and adopt draft legislation, which had been submitted for approval to the tripartite committee, to harmonize the national legislation with the Conventions. In order to reform sections 211, 220, 223 and 243 of the Labour Code, in accordance with the recommendations of the Committee of Experts, draft legislation would be submitted for adoption at the next meeting on 26 June 1997. The Peace Commission and the ILO Standards Department had been informed of these developments. The speaker expressed his appreciation for the technical assistance of the ILO multidisciplinary team's specialists and the support of the Director of the ILO Area Office, and foresaw that such assistance would continue in the construction of a new Guatemala.

The Employers' members noted that this was a long-standing case which was being discussed for the 12th time since 1980 and had been the subject of three special paragraphs. In the late 1980s, the Committee of Experts had noted it once as a case of progress and a direct contacts mission had taken place in 1995. The protracted civil war had played a role, and they were pleased to note that the Peace Accords had created the possibility for constructive dialogue. They highlighted their concern over the restrictions placed on union activities: nationality requirements, the exclusion of candidates with criminal records, and the requirement that candidates be active in the enterprise at the time of the union election. The Employers' members noted that, according to the Minister of Labour, the Government would be ready to submit draft legislation at the end of June 1997. However, they could not share the views of the Committee of Experts concerning the right to strike, as they considered that this right did not flow from Convention No. 87. They noted the agreements reached by the tripartite committee, and expressed the hope that they would yield positive results. Lastly, the Employers' members asked the Government to send a detailed report to the Committee of Experts and hoped that they would be able to note full compliance with the Convention.

The Workers' members recalled that the case had been categorized as a very serious one during the discussion held in the Committee last year. It was very serious because of the facts described by the Committee of Experts, which pointed to a profound divergence between the legislation and the Convention. It was very serious also because of the total absence of cooperation on the part of the Government which boasted of having ratified a large number of Conventions. Finally, its seriousness was proved by the violence and generalized repression revealed by the numerous complaints before the Committee on Freedom of Association. The recent Peace Accords might open the way to reconciliation in the country and permit progress in the application of the Convention, in law and in practice. However, the situation was still at the stage of promises, while its gravity required urgent and significant action. While the Government could be commended on its willingness to adopt a new labour code, as it had announced before this Committee last year, no satisfaction could be drawn from the unsubstantiated reforms. In this respect, it was important to have information on the precise work of the numerous tripartite committees which had been mentioned and, in particular, on that of the tripartite committee on international labour questions, because the existence of purely formal structures was not only insufficient, but could lead to delays perpetuating abuses and impunity. Therefore, the Workers' members could not but share the strong hope expressed by the Committee of Experts that this tripartite committee would take into consideration, in the near future, all of the comments formulated with the view to the elaboration of the draft Code. This was particularly necessary in view of the very fragile political and social context characterized by the general climate of violence and deep anti-union attitudes. The numerous complaints concerning violations of freedom of association attested to the difficulties confronting workers in the exercise of their trade union rights: they were very often threatened, dismissed, attacked or even assassinated, while the anti-trade union practices of the national and foreign enterprises very often went unpunished. The involvement of the police authorities in these practices remained very worrying. It was therefore necessary to be extremely vigilant to ensure that the hope which had arisen from the Peace Accords would not be dashed by paper reforms which veiled violent anti-union practices. The Government should proceed rapidly, with the help of the Office, if necessary, to implement the proposed reforms and should provide a detailed report containing full information on the measures taken to bring the legislation and practice into conformity with the requirements of the Convention.

The Workers' member of Guatemala stated that the Government and employers violated national and international labour standards. The Peace Accords had masked the serious crisis which existed in his country and the loss of moral values. The Government's report contained unilateral information, since the workers' and employers' organizations had not been consulted. The Government had not made any effort to comply with the Committee's requests. An ILO direct contacts mission would confirm his assertions. The tripartite committee, mentioned by the Minister of Labour and of which the speaker was a member, did not promote dialogue and the search for consensus on trade union rights. In Guatemala, the freedom to organize and bargain collectively were restricted, as was evidenced by the destruction of several workers' organizations. Certain enterprises had filed court actions against unions and certain judges had fined the unions considerable amounts. The Government continued to issue standards contrary to freedom of association.

The Workers' member of Argentina recalled that the Workers' members had made specific criticisms on the discrepancies between the position described by the Government and the daily reality concerning trade union rights. Even though one should not forget the context of internal conflict in Guatemala, efforts should be made to secure the effective exercise of freedom of association. The Government should not create situations of anti-union violence, limit the right to strike or discriminate against agricultural workers in the exercise of their rights. Many Latin American countries had ratified ILO Conventions but their legislation did not recognize the rights those instruments established. The full exercise of democratic trade union activity could take place only in a country which favoured the protection of personal and union freedom in daily practice.

The Workers' member of Costa Rica recalled the statement made by the Government representative during last year's Committee which indicated that new legislation had been tabled before Congress and that a decision was awaited. In the present session, the Minister of Labour had indicated that draft legislation was before a tripartite committee. It was apparent that there was no political will to resolve the questions raised by the Committee of Experts. The conciliation tribunals created in Guatemala impeded collective bargaining, and the observation of the Committee of Experts had referred to government interference with unions. Union leaders should benefit from the rights established by the ILO core Conventions and should not be viewed as obstacles to consolidating social peace.

The Workers' member of Greece thanked the Minister of Labour for having taken part in the Committee's dialogue. He was particularly pleased that the Workers' member of Guatemala had spoken because the present Committee frequently discussed violations of freedom of association in the absence of the true representatives of the workers of the country in question. It was now indispensable that the Government repeal sections 220 and 223(b) of the Labour Code which legitimized discrimination of foreign workers, as well as section 241(c): workers knew very well that the success of a strike implied that it was supported by more than a simple majority of the workers involved. The judicial and other formalities to which workers were subjected in the election of their trade union leaders should also be removed, as well as other provisions mentioned by the Committee of Experts, such as section 255 which authorized the possibility of calling upon the national police to ensure the continuation of work, or the series of sections defining legal or illegal strikes. It was also necessary to repeal section 257 and section 390 of the Penal Code which threatened the workers engaged in a legal protest action with very severe penalties.

The Employers' member of Guatemala declared that progress had undoubtedly been achieved in the labour field in Guatemala, as illustrated by this year's revised list concerning the Generalized System of Preferences. Furthermore, the functioning of the Bipartite and Tripartite Committees was very satisfactory. The Government had shown tolerance towards strikes and peaceful takeovers of workplaces, and had even on occasions set aside the claims of employers. The Government's policy had made it possible to establish a large number of trade unions, including independent trade unions at the village level. Contrary to the claims made in certain statements, the trade unions of flour mill workers and bank employees referred to in the discussion were still active. In the case of the former, the dismissals had been a result of the acquisition by the enterprise of automated machines aimed at enhancing competitiveness and in the other case, the Los Cerros matter, a trade unionist had illegally confined the administrative personnel.

The Workers' member of Colombia expressed satisfaction at the signature of the peace accords. However, he emphasized that 45 years after the ratification of the Convention, the Government and the legislation continued to violate such basic rights as the right to organize, the right to collective bargaining and the right to strike. A direct contacts mission should be sent to Colombia as long as the Government had not shown a genuine commitment to apply the Convention.

The Workers' member of France understood from the statement of the Minister of Labour that the serious problems previously noted in Guatemala were to a large extent caused by the climate of tension. In view of the present situation, substantive changes, including a complete review of the legislation, could be hoped for in the near future. However, he emphasized that, while such reforms would take some time, certain immediate measures should be undertaken in order to ensure the full development of the trade union movement in a climate that was free of violence. Recalling that the case of Guatemala had been examined last year by the present Committee and that few changes had been observed, he insisted that it be subjected to continued examination in order to monitor whether any substantive progress had been made.

The Minister of Labour reaffirmed his earlier statement that the Tripartite Committee had reached agreement on 90 per cent of the points criticized by the Committee of Experts and the remaining issues would be discussed again on 26 June. A draft Bill would then be submitted to Congress. The Government wanted the reform of the labour law to be endorsed by workers and employers. The Bipartite Committee, in which the Government did not participate, was examining the reforms to the procedural part of the Labour Code, and was benefiting from ILO assistance. The revised list for the Generalized System of Preferences illustrated the improvement and progress in the situation in Guatemala, as recognized by the Government of the United States. The United Nations had recognized that the human rights situation had improved and that there was now no state terrorism. According to the reports of the Committee on Freedom of Association, denunciations of acts of violence against trade unionists had decreased in number. Violent acts were no longer perpetrated against trade unionists. If it were appropriate, the Minister of Labour would be ready to accept an ILO mission concerning the application of the Convention.

The Committee noted the information provided by the Ministry of Labour of Guatemala and the debate that followed. The Committee regretted to note that, despite the direct contacts mission carried out in February 1995 and the many debates that had been held in the present Committee in 1991, 1993, 1995 and 1996, the Committee of Experts continued to note serious divergencies between the legislation and the Convention. The Committee noted that a firm and lasting Peace Accord had been concluded under the auspices of the United Nations and with the participation of the ILO Office in San José, Costa Rica. The Committee expressed the sincere hope that this agreement would result in a new period of peace, social dialogue and industrial relations and would make it possible to give full effect in law and practice to this fundamental Convention, which had been ratified by Guatemala 45 years ago. The Committee also noted with interest the Government's intention to request the technical assistance of the Office once again. The Committee urged the Government urgently to adopt the necessary measures as soon as possible to eliminate in law and practice the control of the public authorities over trade union activities, the restrictions on persons who were not nationals of Guatemala from holding trade union office and the other restrictions on the exercise of the right to organize. The Committee urged the Government to transmit a detailed report to the Committee of Experts on the measures adopted to give full effect to the Convention.