Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

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

The Government has supplied the following information:

The Government has sent a copy of draft reforms to the Labour Code, to the law on trade unions, to the regulations on the right of public servants to strike, and to the Penal Code, so as to bring national legislation into conformity with the Convention and to introduce in domestic law the fundamental principles and standards of trade union law as set forth in the International Labour Conventions ratified.

These texts were forwarded by the President of the Republic to the President of the Congress on 17 May 2000 for review and approval by the Congress.

In addition, before the Conference Committee, a Government representative, Minister of Labour and Social Protection, stated that the Government had complied with its obligation to draw up draft reforms to the law to bring the labour legislation into line with Convention No. 87 and had submitted this to the legislature for its approval. The aim of the draft was to resolve the majority of the observations made by the Committee of Experts. He expressed his satisfaction in participating in the present meeting of the Committee, since he was convinced that substantive standards must have mechanisms allowing verification of compliance, particularly through the supervisory machinery of the ILO, if they were to avoid becoming meaningless statements. Last year at the 87th Session of the International Labour Conference, the previous Government of Guatemala had stated before this same Committee its commitment to a revision of its labour legislation, so as to comply with Convention No. 87. Contacts had subsequently been established with the ILO Regional Office to request technical assistance. The Committee of Experts had asked the Government to inform it in its next report on all measures adopted in this connection. This report had to be returned by the month of September of this year, which meant that the Government had complied with its obligation to submit a report four months earlier than called for. The present Government of Guatemala took office on 17 January 2000 and had fulfilled this prior obligation within only four months, to execute a state engagement, since the Government held the firm conviction that the obligations of the country must be respected and honoured. Moreover, the Government was convinced that society must live in respect of its own rules as the only means of achieving peace and progress.

Within the field of employment, the Government was firmly convinced of the need to support bilateral relations between employers and workers, in compliance with article 106 of the political Constitution of the country which protected and encouraged collective bargaining, for the purpose of which the existence of trade union organizations which could truly represent the interests and rights of the workers was unquestionably necessary. At all events, this was mandatory under the Labour Code, which established in article 211(1) that the Ministry of Labour must protect and develop trade unionism.

Since the Government's conviction was to act speedily, and because one of the fundamental pillars of the Government's programme was to combat poverty, which could be achieved, inter alia, through justly remunerated employment, he read the note dated 17 May from the President of Guatemala which had accompanied the draft reforms to the legislature. This read as follows: "It is my pleasure to submit to you the draft reforms to the Labour Code, to bring the legislation of Guatemala into compliance with Convention No. 87 ratified by our country. The State of Guatemala, as a Member of the International Labour Organization, is obliged to give effect to this Convention, incorporating into its national law the guiding principles or standards regarding the right of freedom of association and other provisions contained in the international conventions approved and ratified by Guatemala in the field of employment. The Government of the Republic, through the powers conferred on my office under article 183(g) of the political Constitution of the Republic, submits this draft law for consideration and approval by the Honourable Congress of the Republic, and considers it necessary to include within the Labour Code the provisions concerning freedom of association in such a way as to fulfil the obligation of the State of Guatemala as a Member of the International Labour Organization."

The draft reform included standards of compliance and provided for sanctions to discourage violation of the provisions of the Labour Code. A draft was also being prepared to update the Procedural Labour Code to ensure that the labour courts should be fast and efficient. These drafts would be submitted to employers' and workers' organizations at the ILO Area Office. The Government representative stated his certainty that the Committee would take note in its conclusions of the progress achieved by the Government in this area, and that these conclusions would encourage Congress to approve the draft definitively and transform it into the law of the Republic.

The Worker members thanked the Government representative for the information he had supplied and observed that Guatemala had been on the Committee's agenda for a very long time, much of it regrettably for this very case. In its comments the Committee of Experts listed various matters relating to infringement of the right to organize, which was at odds with Convention No. 87. These included the supervision of trade union activities; numerous restrictions on trade union activity based on nationality; the requirement to declare the existence of a criminal record; that the workers should be active in the enterprise; several restrictions on the right to strike, including the imposition of prison sentences of up to five years.

The Committee on the Application of Standards has examined this case since the 1980s and devoted a special paragraph to it in 1985. Since 1990 the Committee had discussed the case on six separate occasions. In 1985 a direct contacts mission took place. Numerous complaints had been put to the Committee on Freedom of Association bred by the tense social conditions and anti-trade union violence in the country. In 1997 the Worker members shared with others the hope that the peace process would usher in marked improvement in social conditions and checks on the impunity associated with breaches of freedom of association. But in 1999 it appeared that the Government was relying on procedural questions to justify its inaction.

In the absence of progress since 1991 and in view of the persistence and serious problems relating to the implementation of Convention No. 87, the Worker members again appealed to the Government to adopt as soon as possible suitable measures to ensure the application of a Convention which is fundamental both in law and in practice. They also requested that the conclusions of the Committee should appear in a special paragraph. The Worker members referred to the statement made by the Employer members last year: "On the issue of the interference of public authorities in the internal administration, programmes and the structure of trade unions ... changes without delay were required since these matters had been under discussion for a number of years." In his statement to the Conference in 1999 the Government representative had said that his Government was aware that its compliance with Convention No. 87 had been at the centre of debate for a number of years both in the Committee of Experts and the Conference Committee and that the matter could no longer be deferred.

The Worker members said that their reason for quoting from the previous year's debate was that once again they had been forced to acknowledge that though the Committee had received promises it had not seen any progress. Year after year the Government had said that it was moving in the right direction and change was on the way. But in the end the Committee of Experts passed on the same familiar comments, reporting persistent defiance of freedom of association. The Worker members concluded that in view of the persistent breach of Articles 2 and 3 of the Convention, particularly Article 3, paragraph 2, the Committee should request that national law and practice reflect draft amendments to the Labour Code, trade union law and the rules governing civil servants' right to strike as well as amendments to the Penal Code to bring national legislation into line with the Convention and to introduce the fundamental principles and standards of freedom of association into municipal law in harmony with the International Labour Conventions ratified by the country.

The Employer members noted that the case of Guatemala in respect of Convention No. 87 had been examined on several occasions in recent years. This fact was regrettable since it demonstrated that the Government was not complying with its obligations under the Convention. If one compared the comments made by the Committee of Experts this year with those of last year, there was very little information that was new.

Turning to the issues raised in the comments made by the Committee of Experts the Employer members noted that these could be divided into two parts. The first part dealt with legislative provisions of the Labour Code which allowed for the possibility of Government interference into the structure and activities of trade unions. This part was a clear violation of the Convention. The second part of the Committee of Experts' comments dealt with legislative provisions relating to labour disputes and, in particular, the right to strike. As mentioned in previous years, the Employer members recalled that Convention No. 87 did not regulate the right to strike. It was demonstrated in the preparatory notes drawn up when the Convention had been elaborated that it had not been intended to regulate the right to strike. Hence, the Employer members did not consider that Convention No. 87 had been violated with regard to the issues concerning the right to strike.

Turning to the national tripartite committee concerning international labour issues, the Employer members were of the view that its work was not very effective. There appeared to be a lack of political will by the parties represented in this national committee to collaborate. The Employer members considered that the current situation in Guatemala was also the long-term consequence of the civil war. Although a peace agreement had been concluded by the parties, the process of reconciliation was long and it was fairly difficult to reach a real and lasting peace. However, while this issue complicated matters, it was not an excuse for the Government to infringe the Convention.

The Employer members therefore considered that the Government should be urged, in the Committee's conclusions, to take measures to bring its legislation in line with the provisions of the Convention. However, the conclusions should also reflect that the Government had supplied a draft bill to the Office in May. Nevertheless, it should also be noted therein that the Committee should await the comments of the Committee of Experts on the draft legislation before coming back to this case, if necessary.

A Worker member of Guatemala stated that he had been informed by the statements of the Minister and by the written information provided by the Government of a draft law before Congress aimed at bringing legislation into conformity with Convention No. 87, made in relation to the repeated requests of the Committee of Experts. He stated that draft laws were manipulated in Congress and that there were no guarantees that the requirements of the ILO would be respected. Nevertheless, the challenge had been raised. Furthermore, he underlined the absence of political will which would ensure respect for the existence of trade unionism in practice. The speaker listed various examples of the systematic violation of the right of freedom of association. Trade union actions were penalized and criminalized with the aim to persecute, intimidate, demoralize and destroy the trade union movement and its organizations. Agricultural workers who had requested raises in wages were the object of criminal charges and were condemned to 20 days' incarceration; the trade union SITRABI and its leaders were the object of criminal proceedings, and 200 persons had raided the headquarters of the organization and made death threats against its officers. If one looked beyond the proposals of the Government, the reality was dramatic and stark. In industry, banking and agriculture, an instruction manual was in use on how to obstruct or eliminate trade unions. Dozens of trade union officials had been assassinated, and the highest judicial authorities did not prosecute the murderers, creating a situation of impunity. It was a matter of urgency to address the situation because, should workers lose confidence in the law, they would seek other means.

The Employer member of Guatemala stated that he could not refer to the draft law of which the Minister had spoken, since he had not seen it. The employers had only been shown the draft yesterday: clear evidence of its non-tripartite basis. To comply with the recommendations of the experts, one of the fundamental principles of the ILO had been violated (in complying with Convention No. 87, Convention No. 144 had been violated); under the pretext of applying the law, the law had been violated. As everyone knew, the Machiavellian saying, that the end justifies the means, was tenable neither ethically nor legally.

The recently elected authorities in Guatemala had governed for less than five months and this was the second case of violation of tripartism; which, beyond the simple ratification of Conventions, was developing into a healthy practice in Guatemala; thus, for example, important changes had been approved, such as the reforms to the Labour Code derived from the peace agreements. On the first occasion tripartism had been violated, when the Executive had submitted to the Congress of the Republic the draft concerning employment legislation which had just been adopted as a law of the Republic, the employers had been obliged to show their rejection of such a practice by leaving the tripartite discussion, since if genuinely important issues were not brought to its notice, such discussion had no meaning. This was the second occasion on which tripartism had been violated and he therefore had no choice but to address the Committee in these terms. The Minister might claim that consultation had not taken place as a result of the employers' attitude, following the first violation of tripartism referred to earlier, when the employers had quit tripartite discussion. This position was, however, untenable, since the employers had neither been convened as they should have, nor had they received a copy of the draft law, as was appropriate in application of tripartism. He questioned whether imposition without dialogue was to be the guiding principle on which labour relations and government in his country were to be based.

Perhaps the experts would not be concerned in respect of Convention No. 87, but they would certainly be so regarding the practices contrary to Convention No. 144. To solve one problem, another had been created, with serious consequences for the dialogue and concertation so necessary to Guatemalan democracy and peace, the construction of which had begun at the end of 1996. In conclusion, the Employers called on the Government to return to tripartism as the best way of guiding relations in the production sector. He requested that the conclusions of the present Committee should reflect the fact that the draft to which the Government had referred regrettably had no tripartite basis.

The Worker member of Norway, speaking on behalf of all the Workers from the Nordic group, fully supported what had been stated by the Worker members. Guatemala had ratified Convention No. 87 in 1952. In its comments on the Government's report, the Committee of Experts had once again recalled that there were a number of restrictions on the right to organize and the right to strike in the Labour Code. These restrictions reflected the completely unacceptable attitude on the part of the authorities vis-à-vis trade unions and trade union activities. By not having brought its legislation into conformity with the Convention, the Government in fact tolerated and contributed to the violations of the Convention it had ratified, but by no means implemented.

The Norwegian trade union movement was well acquainted with abuses towards workers in the country, especially in the banana sector, through direct cooperation with its sister union in Guatemala, UNSITRAGUA, and through reports from the ICFTU and Amnesty International. Workers were dismissed for no other reason than union membership and the authorities participated actively in the harassment of workers. When a subsidiary of one of the main multinationals in the banana sector dismissed 1,000 workers in September 1999, workers were gravely mistreated. Worse still, in October of the same year, paramilitaries had broken into trade union premises, held trade union leaders at gunpoint and forced them to sign resignation letters. Although the trade union premises were only 400 metres away from the police station, at no point did the police do anything to investigate these grave violations. The passiveness of the Department of Labour in the maquila industry (Export Processing Zones) was well known. While there were 11 unions in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" plants with organized workers, only to reopen them and hire more compliant workers.

The Committee had been informed that the Government might now show signs of understanding the gravity of the situation and that it would no longer tolerate the non-respect of Convention No. 87. Copies of draft amendments to the Labour Code to bring it into conformity with the Convention had in effect been forwarded to the Office very recently. However, promises to change existing laws had been given earlier -- and not kept. It would be shameful to repeat this exercise again. It was hence the responsibility of this Committee to ensure that the Government brought its law and practice into conformity with the Convention, and thus to ensure the effective protection of the workers' rights to organize, bargain collectively and take part in industrial action.

The Worker member of the United States pointed out that many of the issues raised by the Committee of Experts in its report last year were now before the Conference Committee without any final and satisfactory resolution. The Minister had made tremendous efforts to change things for the better in a short period of time, including putting forward proposals to Congress for changes to the Labour Code which would remedy some of the issues of non-compliance mentioned by the Committee of Experts, under Convention No. 87. However, the Minister was limited by other elements including the Congress, a judiciary with full jurisdiction over labour matters, employers who had adopted anti-union and anti-worker modus operandi and a lack of budgetary resources to underwrite his plans and programmes.

He wished to highlight a few of the examples of non-compliance with Convention No. 87. Referring to the points mentioned in the Committee of Experts' report, he pointed out that although the Labour Ministry had proposed amendments to remedy some of the violations contained therein, they still remained ineffective. Secondly, there was the troubling question of the Guatemalan judiciary. According to reports from representatives of the AFL-CIO Solidarity Centre, many of the eight regional tripartite conciliation and arbitration tribunals, designed to resolve disputes relating to freedom of association, were not operative. Very few cases had reportedly been resolved by these tribunals, which had originally been established to address the problem of over-centralization of the labour justice system in Guatemala City. This situation had denied workers in the countryside access to the courts. Thirdly, the reforms proposed by the Labour Ministry would not resolve violations of Convention No. 87, originating in the criminal justice system and the Penal Code. An example of such a violation could be seen in the Committee of Experts' reference to section 390(2) of the Penal Code, which could be used to impose prison sentences on those engaging in legitimate strike activities. Finally, there was also the problem of impunity for those responsible for committing criminal offences against trade unionists and their families. For example, it was his understanding that the 12 cases of assault, battery, kidnapping, murder, torture and death threats against Guatemalan trade unionists and their families, which occurred between 1994 and 1995 and which were reported to the United States trade representative in January 1996, were still unresolved without conviction or redress.

In conclusion, the ILO should do everything within its powers to ensure that the Minister's plans to bring about genuine compliance with Convention No. 87 in his country prevailed. He called on his own Government, specifically with regard to its projects to assist in the modernization of Central American labour ministries, to actively engage with the Minister and the Guatemalan labour movement, to enhance the enforcement capacity of both the Guatemalan Labour Ministry and the judiciary.

A Worker member of Colombia emphasized that the legislation of Guatemala contained unacceptable obstacles to freedom of association. He hoped that next year the promised new law regarding trade unions would appear and recalled that promises made by previous governments were never fulfilled. It was necessary to respect the rights of trade unions and to guarantee the development of freedom of association. Furthermore, the Government should guarantee that trade union activities would not be criminalized, and it should eliminate the existing situation of impunity. He recalled that a democracy without trade unions was a caricature and that unions should be strengthened in order to avoid the violent conflicts well-known around the world.

A Worker member of Uruguay indicated that it was clear from the reports of the Committee of Experts, the statements by the Worker members, and by a Worker member of Guatemala, that the situation in Guatemala was in violation of Convention No. 87. The Government's intentions in submitting a draft law to Congress were positive, but this case should continue to be monitored and examined again in 2001 if there was no progress. He hoped that the present Minister of Labour would not forget the principles for which he had fought when he was a trade union leader.

The Government representative indicated that he understood that all opinions which had been expressed were intended to be of assistance to Guatemala, but he found it regrettable that these opinions strayed from the observations of the Committee of Experts and touched on criminal acts which were not part of the discussion or on matters related to the application of Convention No. 144. He underlined the intention of the new Government to do what was necessary to move along the processing of the draft law recently submitted to Congress, which, he recalled, had only been in power for four months. With regard to the statement by the Employer member of Guatemala indicating that the Government did not respect tripartism, he recalled that it had been the employers who had abandoned tripartite consultations and had declared that they would not return. Nonetheless, he invited employers to rejoin tripartite discussions and indicated that they would be reconvened in July. With reference to other interventions, he indicated that the enterprise Bandegua and the trade union SITRABI, had arrived at an agreement to rehire 918 dismissed workers, as well as the recent decision by the court of Puerto Barrios to open oral proceedings against 23 persons for criminal acts in relation to the conflict in the banana industry.

The Worker members considered that the arguments that they had put forward one year earlier and which they had referred to were still very topical. They noted the Minister's statement about the bill submitted to Congress even though it had emerged from debate that the social partners had not been consulted. They dared to hope that the policy as announced would be translated at last into action. While waiting for promises to give way to action and for the Committee of Experts to form an opinion, they requested that the Committee should state in the firmest possible terms its concerns about anti-union practices and culture in the country.

The Employer members, referring to the statements made by a few Worker members that the Minister of Labour had been a former trade union activist and that he should therefore not forget his background in performing his work, hoped the Minister would fulfil his duties for the well-being of all people living in Guatemala. The Employer members added that the bill first needed to be examined by the Committee of Experts. In the light of that examination, this Committee could perhaps reach different conclusions. However, in the meantime the Government should provide a detailed report which should be established in consultation with the social partners in conformity with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

The Committee took note of the written and oral information supplied by the Minister of Labour and of the discussion that took place in the Committee. The Committee recalled that the problem of non-compliance of national legislation and practice with the provisions of the Convention had been examined by the Committee of Experts and discussed in this Committee over many years, including the previous year. The Committee took note of the development announced by the Government representative, which had just occurred, that draft legislation to amend the Labour Code, the trade union legislation, the regulation on the right to strike and the Penal Code, in order to bring them into conformity with the requirements of the Convention, had been sent by the President of the Republic to Congress for adoption on 17 May 2000. The Committee indicated that it would be for the Committee of Experts to examine the compatibility of these amendments with the provisions of the Convention and trusted that these amendments would finally allow the full application of this fundamental Convention, ratified in 1952. The Committee was still concerned by the lack of concrete progress in practice. The Committee expressed its firm hope that the Government would send a detailed report to the Committee of Experts and a copy of the amendments adopted so as to allow it to make an assessment of real progress in law as well as in practice by the following year. It recalled the importance it attached to tripartite consultations with regard to the application of the principles of freedom of association.