Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

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

A Government representative stated that in April 1997 the Guatemalan Ministry of Labour had submitted to the Tripartite Committee on International Labour Affairs, the observations on the discrepancies which the Committee believed to exist between national legislation and Convention No. 87. This first round of discussions did not yield a consensus on the draft reform, as the Committee of Experts had noted in this year's report. It had also taken note of the internal difficulties which had prevented the Tripartite Committee from being set up since the beginning of 1998. One month after the Government representative had taken up office as Minister for Labour, in July 1998, the Tripartite Committee was set up. One of the tasks awaiting this Committee was to approve a working agenda; the Minister of Labour considered that priority should be given to recognition of the recommendations of the Committee of Experts therein. The agenda was to be proposed by a tripartite subcommittee, formed for this purpose. This subcommittee, like others, including the subcommittee mandated to revise a draft Bill to strengthen the sanctions regime of the Labour Code, had not submitted a proposed agenda. It should also be noted that the Committee had functioned irregularly and had difficulty in achieving a quorum. For example, in 1999, only five of the 15 sessions provided for took place. The Government, in line with the provisions of the peace agreements, laid stress on tripartite dialogue, since it considered it the most suitable method of dealing with the various fields of labour relations, including issues such as an agreed alignment of the provisions of national legislation with Convention No. 87. The Government acknowledged that the issue of respect for Convention No. 87 had for several years been the subject of the attention of both the Committee of Experts and the present Committee, and that his own attention was, therefore, inevitably engaged. The Minister for Labour requested the Tripartite Committee to declare this a priority issue, so as to initiate discussion as quickly as possible, establishing a reasonable time-limit to arrive at conclusions, with the understanding that beyond this limit, should agreement not be reached, the Ministry for Labour would elaborate draft reforms to submit for the consideration of the legislature. He expressed his hope that in this the Government could count on the technical assistance of the ILO, so that the proposals of the Tripartite Committee, or in their absence those formulated by the Ministry for Labour, should receive adequate technical aid. Technical assistance would also be required in respect of the final question referred to by the Committee of Experts in its report with regard to essential services. The Government had the political will to promote and instigate action in this connection, to arrive at an agreement and a solution to the issue raised by this Committee.

The Worker members thanked the Government representative of Guatemala for the additional information that he had supplied and recalled that this case had been examined by the Committee for many years. The situation of freedom of association in Guatemala was the subject of a special paragraph in 1984, and was also examined in 1991, 1993, 1995, 1996 and 1997; in addition, a direct contacts mission filed its conclusions in February 1995. Already in 1996, the Workers' group had qualified this case as very serious because of the context of violence and repression that reigned in the country. In 1997, at the beginning of the peace process the Committee as well as the Committee of Experts, while indicating their understanding of the situation, asked the Government to take the necessary measures as soon as possible to put an end to the interference of public authorities with the activities of trade union organizations and to other restrictions on trade union freedom.

The comments of the Committee of Experts referred once again this year to violations of essential trade union rights such as: the monitoring of trade union activities, multiple restrictions on the right to organize based on nationality, existence of a police record, aptitude for or having an occupation and limitations on the right to strike with contraventions subject to the imposition of prison terms of up to five years. It was appropriate, moreover, to recall the numerous complaints that were pending before the Committee on Freedom of Association.

The report of the Committee of Experts indicated the intention of the Government to examine the question of services that were not considered essential in the context of the right to strike. However, with regard to the other points raised, the Government referred international questions to the Tripartite Committee. The development of the situation could not be considered satisfactory. Two years ago, the Workers' group had already made known its apprehension in indicating that the existence of purely formal structures was not only insufficient but could also be the basis for new delays enabling abuse and impunity for the perpetrators. It was regrettable to observe that no measure had been taken to put the Labour Code into conformity with the provisions of the Convention. The Government seemed to use the above-mentioned Tripartite Committee to justify its lack of action in so far as until now no initiative had apparently been taken to place the questions raised by the Committee of Experts on its agenda.

In addition to this lack of progress there was a difficult and violent social climate. The complaints that had recently been filed with the Freedom of Association Committee by the CGT of Guatemala, the CLAT and the CMT, on the one hand, and by the CISL, on the other hand, were evidence of a situation where labour insecurity and instability, arbitrary dismissals for trade union reasons, threats and many anti-trade union acts including kidnapping and even the assassination of trade union leaders and militants prevailed. This situation, in addition to the impunity of those responsible for such crimes, required great vigilance. It was unacceptable and frightening to note that the inertia of the authorities was paid for in human lives.

Despite the observations that had been formulated on many occasions, no progress had been noted since 1991. Faced with continuous and serious problems with the application of the Convention, the Committee's conclusions should be included in a special paragraph and the Government once again encouraged to adopt the required measures to ensure the application of the provisions of this fundamental Convention as soon as possible, both in law and in practice. The Workers' group intended to discuss this case next year and hoped to observe progress in the application of the Convention, in the absence of which the conclusions of the Committee should be renewed in another form.

The Employer members stated that in the 1980s the Committee had dealt with this case from time to time and in the 1990s again on five occasions, most recently two years ago. They noted that the case concerned many restrictions on freedom of association. While many of the problems could be linked with the long civil war, since the signing of the 1996 peace accord, the prerequisites for positive change had existed. In 1997, the Minister had announced the Government's intention to make the necessary legislative changes and in this context to set up a tripartite committee. It was now obvious that this Tripartite Committee was not active. They noted that according to the Government some of the delays resulted from the fact that the Workers' group could not agree concerning its presence on the committee and, therefore, only a few of the scheduled meetings could take place. However, this could not justify a large number of the other criticisms that had been levelled by the Committee of Experts, particularly concerning interference in the internal administration of trade unions. The State was not entitled to interfere in the internal administration of trade unions, and in this regard there had clearly been a violation of the Convention.

As regards the Committee's observations concerning the right to strike, they disagreed with the views expressed by the Committee of Experts. The Employer members were of the view that since the Convention did not provide detailed regulations in this respect, none should be inferred. The Committee of Experts' interpretations with regard to the right to strike were too far-reaching and did not derive from the provisions of the Convention. In this respect, the Employer members could not share the recommendations made by the Committee of Experts to the Government on this point. They welcomed that questions concerning industrial relations were being addressed in the context of national tripartite consultations. However, since issues of industrial disputes were an internal matter, it would be inappropriate for the Committee to comment thereon.

On the issue of the interference of the public authorities in the internal administration, programmes and the structure of trade unions, the Employer members emphasized that changes without delay were required since these matters had been under discussion for a number of years. While the delays in remedying the violations could partially be attributed to the social partners themselves, they stressed that ultimately the Government must take responsibility for ensuring compliance with the Convention. They acknowledged that there was a difference between a peace accord and true peace, and stated that it was likely that difficulties in changing law and practice had been a consequence of the long civil war. In their view, the Committee should urge the Government to take more active measures than in the past to bring about the necessary changes, and they called on the Committee to address an urgent appeal to the Government in this regard, including asking for all relevant reports. They stated that if no progress was observed, this case should be examined again by the Committee but in a different form.

The Worker member of Guatemala said that the Government of Guatemala should be obliged, once and for all, to cease confusing the national and international communities with double talk. Democracy and peace for the people could not be obtained through talk and promises and still less with signed pieces of paper. Democracy and peace was built on firm facts including, among other things, freedom of association and the respect of fundamental rights of persons, contained in the ILO's Conventions, and in this case in Convention No. 87.

He reiterated that Guatemala's legislation was not in conformity with the provisions of the Convention, despite the many observations of the Committee of Experts and the fact that this case had been discussed before this Committee for many years. The lack of political will of the Government was demonstrated by the fact that it had been necessary to resort to a direct contact mission in 1995 that dealt with the violation of trade union rights and the lack of union freedom which had been denounced by the Guatemalan trade union movement. Although the Government had always agreed to respect union freedom and bring legislation into line with the recommendations of the Committee of Experts, the situation remained the same. A United Nations report in March 1999 raised the question of non-respect of Convention No. 87 and referred to the views expressed by the Committee of Experts, citing concrete examples.

He regretted that the Government of his country tried to justify with false statements the impossibility of bringing Guatemalan legislation into harmony with the recommendations of the Committee of Experts, which they had claimed was due to a lack of consensus in the Tripartite Committee. He stated that he had been a titular member of this committee in existence since 1998 and that during this time he had seen no draft bill bringing national legislation in line with the recommendations of the experts.

Another Worker member of Guatemala stated that government supervision of union activities had enabled the General Labour Inspectorate to interfere with workers' trade union organizations. This was the case with Hidrotecnica SA where, in February 1997, the Labour Inspectorate had altered the employment registers to enable the employer to dismiss all workers who were members of the trade union. The previous Minister for Labour, in response to the union denunciations, had initiated proceedings within the Public Ministry for falsification of documents. To date, however, the case was not resolved, the workers remained dismissed and the union destroyed.

The speaker pointed out that the Penal Code regulation which enabled judgement to be passed on those persons whose intent was to paralyse or disturb the functioning of enterprises, had been used by the enemies of trade unionism to pass penal sentences on workers constituting a union, and that this had occurred in several cases in coffee and banana plantations, where approximately 200 workers were charged with criminal offences for simply being trade union members. Those who considered that trade unions were harmful to enterprises and the national economy used this regulation to destroy the unions, by converting them into criminal institutions. During the war, trade unionists had been murdered and now, during the peace process, they were imprisoned in application of dubious judicial procedures with only the appearance of legality.

The speaker said that freedom of collective bargaining and the right to strike had been removed from workers in the public sector and arbitration had been imposed on them, thus violating Conventions Nos. 87 and 98. Since the entry into force of Act 35-96 of 27 May 1996, prohibiting collective bargaining and strikes, there had been no cases of arbitration, which meant that these workers had lost all their rights. The report of the Committee of Experts showed clearly that labour legislation in Guatemala violated the principles of freedom of association, collective agreement and the right to strike contained in the Conventions ratified by Guatemala. This trade union policy resulted in those workers claiming their rights being met with acts of violence, such as had occurred in 1998 on the El Paraiso banana plantation. On two occasions, the peasants had been fired on from a helicopter inflicting bullet wounds on a worker each time, while the aggressor still went free. This year, two workers from Zacapa were murdered for trade union activity, while the author of the crime remains at liberty. There had been a recent spate of death threats against trade union leaders.

The speaker called on the international community united in the ILO and at this Conference, to obtain its support so to avoid returning to the past of the horror and death at the time of war. He urged that his country should respect the agreements undertaken and establish a true rule of law, to bring an end to the lack of punishment for the violation of workers' rights. He requested that Guatemala should be included in a special paragraph, since no positive results had emerged from the direct contact mission of 1995. Since July 1998, when the present Tripartite Committee was established, the Government had made no presentation on any issue relative to the Committee of Experts' observations.

A Worker member of Brazil stated that the Government of Guatemala's action over workers' associations was very worrying and there had been cases of persecution and murder of trade union leaders. Convention No. 87 was one of the mainstays of fundamental rights of the ILO, and the freedom inscribed in its Article 2 was quite incompatible with everything at present happening in Guatemala. Workers should be able to organize their unions free of all government supervision and in conformity with Articles 2 and 3 of the Convention, they should be free to elaborate their statutes, which was to say that they should be able to elect freely anyone who wished to join their executive committee. The same could be said of the right to strike. Striking was more than a right, it constituted an expression of freedom. In conclusion, he stated that essential services could not be understood in so wide a sense as to reduce the freedom of action of the Guatemalan unions. This was the spirit in which the decisions of the supervisory bodies of the ILO had been conceived.

The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries, fully supported the statement made by her Worker colleagues concerning the problems in the implementation by Guatemala of the Convention, which it had ratified as long ago as 1952. The Committee of Experts had recalled its previous comments on the case and listed a number of restrictions in the Guatemalan Labour Code on the right to organize and the right to strike. These restrictions on the establishment and activities of trade unions and the right to strike showed the Government's unacceptable attitude in the past to trade unions and trade union activities. However, this legal framework merely provided the background for the gross abuses of labour rights in Guatemala and legitimized the abuses committed by employers and the authorities. Minugua, the United Nations human rights organization in Guatemala, confirmed that the right to organize and freedom of association were severely limited by the authorities' failure to protect labour rights. By not bringing its legal framework into conformity with the provisions of the Convention, the Government was tolerating and contributing to the violations of the Convention. Workers were being dismissed for no other reason than trade union membership. In the few cases in which the courts demanded the reinstatement of dismissed workers, their orders were not followed. She stated that the authorities also participated in the harassment of trade union members. After a strike on a COBSA banana plantation, arrest warrants had been issued for 131 members of UNSITRAGUA. The charges had been based on lost profits during the strike, and were brought by a solidarist association in alliance with the COBSA banana plantation owners. In this way, a labour conflict had been turned into a criminal case. These charges and arrest warrants had only been revealed recently, even though the strike had taken place some time ago. In the plantations in question, 585 of 700 members of UNSITRAGUA had been dismissed, while all 355 members of the solidarist association remained employed.

She added that the passivity of the Department of Labour in the export processing industry is well known. In contrast with the 11 unions that had existed in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" establishments where they considered there to be "too many" unionized workers, only to reopen and hire more compliant workers. Women workers were particularly vulnerable to harassment by their employers.

She emphasized that union leaders continued to be killed in Guatemala. In the consequent climate of fear, workers did not dare to organize or be actively involved in the trade union movement. She, therefore, urged the Committee to take the strongest possible measures to ensure that the Government changed its legal framework to bring both its law and practice into conformity with the Convention, and thereby ensure effective protection of the rights of all workers to organize and take part in industrial action.

The Worker member of Uruguay stated that the Committee of Experts' report was more than conclusive on this case. He wondered how it was possible that, among other incredible things, of the elected trade union executives, at least three had to be able to read and write. This was an attack on basic human rights. A person who had not had access to education could not be elected to represent his colleagues in respect of social and employment questions. The speaker asked whether by any chance it was their own fault that they could neither read nor write, whether there were any education plans, and what percentage of the GNP was spent on education. To illustrate the situation in Guatemala, he mentioned the case of a lawyer who, with respect to the employment of staff in an enterprise, indicated ways to discriminate against and persecute workers who engaged in trade union activities, always to destroy unions. This was a clear example of someone who had studied and who made use of his studies in attacking the unions and, in his position as lawyer, gave advice on the violation of the fundamental ILO Conventions. The speaker wondered what action the Government would take regarding these facts. The speaker stated that he was aware that the Government of Guatemala had been elected to the Governing Body and, he wondered how it would collaborate in the administration of labour law in respect of other countries and if it would not be better for it to bring its legislation rapidly into line with Convention No. 87, so as to be able to ensure the most fundamental of human rights in other countries.

The Worker member of the United States expressed regret that while the Committee had reviewed this case thoroughly on a number of occasions, most, if not all of the violations raised had not yet been remedied. He asserted that there could be violations of the Convention through acts of omission as well as of commission. It was, therefore, not only legal limitations on freedom of association that contravened the Convention, but also a government's failure to prevent effectively and remedy the interference of other parties in the workers' exercise of associational rights, such as in non-violent strikes and concerning organizing and collective bargaining.

He referred to the 1999 ICFTU report on Guatemala stating "every method in the book is used to destroy trade unions". He also made reference to the workers' rights and freedom of association review process of the General System of Preferences in US trade law. In May 1997, the US trade representative having completed a review on Guatemala, stated that the country needed to make substantial advances and changes, and reserved the right to reinitiate the review if necessary. However, the Government had failed to make those substantial advances and changes. He stated that the country's restrictions on the right to strike clearly contravened the Convention. In this context he pointed to sections 243 and 249 of the Labour Code and section 390(2) of the Penal Code which in his view prohibited any effective strike action in both the rural and the urban sector. He asserted that the statements made during the Committee only confirmed that the necessary legislative measures to redress these fundamental violations of the Convention had not yet been implemented. He expressed regret that the Tripartite Committee which was supposed to formulate these legislative measures seemed to have been at a standstill since July 1998.

He emphasized that a State's administrative and judicial capacity to protect and advance freedom of association was a key to its compliance with the Convention, and that, in May 1998, a Labour Code reform package had been passed ostensibly for this purpose. However, this reform totally failed to improve the enforcement capacity since it imposed no fines for violations and did not provide authority to the Labour Ministry to impose sanctions without having to await court action. Moreover, the Labour Code reform failed to ensure the implementation of article 380, providing that workers who had been unlawfully dismissed or victimized would be reinstated within 24 hours; many dismissed trade unionists had been waiting for years for redress. He joined a number of the other speakers in urging the Committee, given the lack of any progress even in the wake of direct contacts missions, to include this case in a special paragraph.

The Government member of Colombia stated that it would be dishonest to fail to recognize the profound harm that was caused by non-stop violation of Convention No. 87 by the Government and many employers. A quick glance at the report of the Committee of Experts sufficed to show the unacceptable manner in which the rights of workers were being denied and distorted and this with the greatest impunity. The political Constitution and the Labour Code set forth the rights and guarantees of workers but were in fact nothing more than a dead letter. The speaker cited various cases where workers had been dismissed and persecuted. He also mentioned cases where trade unionists had received death threats. He expressed the hope that the Government would take the measures to protect the lives of trade unionists and would give guarantees regarding freedom of association, collective bargaining and the right to strike. What was the point of signing for peace, if war continued?

The Worker member of Spain stated that, although the report of the Committee of Experts only dedicated a page to Guatemala regarding Convention No. 87, systematic attacks on freedom of association were regular in that country. In March 1994, a United Nations fact-finding mission to Guatemala had produced a new report giving details of attacks against unions. The report denounced continuous connivance between judges and the Government to persecute trade unionists. There were innumerable examples of such action. He cited a case in which the judges had accused several trade unionists of the crime of abortion in a United Nations report. A precautionary injunction had been at the origins of the procedure. Although the persons concerned had then been released, such action weakened the trade union structure. Indeed, a plan to destroy the trade union movement had been revealed in a Guatemalan newspaper. He also referred to the case of an enterprise which had dismissed its workers and, four or five months later, replaced them by workers who had no history of trade union involvement.

The Worker member of Bolivia indicated that it was unacceptable, from any point of view, to prohibit the right to strike and to impose one- to five-year prison terms in this regard. The spokesperson asked how trade union rights could be ignored when the workers themselves were the ones supporting democracies. He recalled that Convention No. 87 had entered into force on 4 July 1950 and that the Government of Guatemala had ratified it on 13 February 1952, but since then there had been no new developments. He called for full compliance with Convention No. 87.

A Government representative of Uruguay regretted Guatemala's position with respect to Convention No. 87 and hoped that the efforts referred to by the Government of that country would soon be made, so as to bring its legislation and practice in line with the letter and the spirit of the Convention. He stated that Uruguay had recently received a Tripartite Committee from the Ministry of Labour of Guatemala, which came to analyse the different aspects of the development of tripartism in Uruguay. The members of the Tripartite Committee had taken great interest in all the activities which had been proposed to them. This recent visit had given him confidence that the Government would expedite and promote the inevitable amendments to its legislation and its practice, in respect of Convention No. 87, so that the peace and democratization process might be clearly felt in the field of labour relations. The election of Guatemala to the Governing Body of the ILO only served to make this responsibility more clear.

The Employer member of Guatemala regretted that it had not been possible to discuss the issue in question in the tripartite committee, as indeed the experts had said in their report. This was due, among other reasons, to the fact that the trade unionists had been unable to agree on who should represent them. This was regrettable since the Employers shared the concern of the Workers regarding violation of Convention No. 87. He also stated that there had been 116 illegal work stoppages, and occupation of plantations and factories. For this reason, the Employers could not accept a special paragraph.

A Government representative stated that as regards the conflict which had ravaged his country for the past 36 years, the peace agreements were not agreements on paper only, but official declarations by his Government before the national and international communities and marked the beginning of a process which could be further improved. The root of the civil war lay not only in poverty and the lack of democracy, but also in the Cold War and in ideologies oriented towards substituting democracy with a dictatorship sustained by the class struggle.

The Tripartite Committee on International Affairs provided a forum in which solutions regarding labour relations could be sought and did not constitute a pretext for avoiding international obligations. However, the workers had not availed themselves of the opportunity to progress from denunciation to dialogue and had not put forward concrete proposals. He pointed out that although the Ministry of Labour had proposed amending the sanctions regime of the Labour Code, in the ensuing twelve month period, neither the workers nor the employers had replied to these proposals. He indicated that of the ten sessions suspended, eight were attributable to the workers' failure to attend Committee meetings, one to the employers, and one to the Government.

As regards the murders referred to, he considered that these kind of references were highly irresponsible. For example, in the case of the murdered trade union leaders in Zacapa, the investigations of the MINUGUA revealed that these trade union leaders and others who had been killed had been murdered for denouncing acts of corruption by municipal officials in Zacapa. Certain workers had made a number of erroneous statements claiming that judges, who were members of a body independent of the Executive, were colluding with the Governor.

As regards the death threats issued against the Secretary General of the CGTG, Mr. Jose Pinzon, these were denounced before the Tripartite Committee, whoc condemned these threats. The Ministry of Labour had requested an investigation into these threats by the appropriate authorities and had followed the case closely. When Mr. Pinzon was asked to provide a copy of the death threat which had been faxed to him, he replied that he had destroyed the fax.

In conclusion, he reiterated his Government's firm commitment to continue to work with the Tripartite Committee in the hope of reaching agreement on the Bill which would take account of the comments that had been formulated in this regard.

The Worker members stated in respect of the statement of the representative of the Government, the Employer representatives and the Employer representative of Guatemala, that other reasons for the non-functioning of the Tripartite Committee on International Labour Questions had been mentioned.

The Committee noted the oral information provided by the Government representative 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 this Committee in the last decade, the Committee of Experts continued to note serious divergencies between the legislation and the Convention. The Committee had previously 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 Area Office. It had expressed the hope that this agreement would result in a period of peace and social dialogue that would make it possible to give full effect in law and practice to this fundamental Convention, ratified by Guatemala 47 years ago. Deeply regretting the lack of progress, the Committee once again strongly urged the Government to adopt the necessary measures to eliminate without delay in law and practice the supervision of trade union activities by the public authorities, the restrictions on persons who were not nationals of Guatemala from holding trade union office and other restrictions on the exercise of the right to organize. Noting with concern the seriousness of the cases pending before the Committee on Freedom of Association, the Committee urged the Government to respect fully the civil liberties essential to the implementation of the Convention. The Committee insisted that the Government supply a detailed report to the Committee of Experts for its 1999 session on the measures actually adopted to give full effect to the Convention in law and practice.