Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

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

A Government representative indicated his surprise regarding the fact that his country had been selected in respect to Convention No. 87, since the Committee of Experts had noted in its report the progress made. He expressed his satisfaction for the fact that the Committee of Experts and the Freedom of Association Committee had recognized that amendments to the Labour Code introduced in 2001 complied with many of its requests, and for the fact that it had mentioned the progress made in the country regarding the application of trade union rights. He expressed his country's commitment to continue to collaborate with the supervisory mechanisms of the ILO.

The speaker recognized that the enjoyment of freedom of association in Guatemala had not always been satisfactory, since, from 1954 to 1985, various authoritarian regimes had succeeded each other and there had been an internal military conflict which had lasted until 1996 and had been accompanied by the breakdown of the domocratic constitutional order and of the rule of law. However, in 1986, a democratic transition had been initiated, which had made possible the signing of the Peace Accord of December 1996 and had supported international cooperation. Account had to be taken of the fact that rebuilding the institutional legal order was a task requiring years. In this regard, the reforms recently introduced in the country to guarantee the freedom of association and other labour rights through the amendment of the Labour Code and the reinforcement of the Ministry of Labour were important. The speaker stressed that his predecessor had a vast experience with trade unions and had initiated a movement to defend workers which he would keep up, having defended the workers before from the Congress of the Republic, the Office of the Ombudsperson and the Mission of the United Nations for the Verification of the Peace Accords (MINUGUA). This had allowed to strengthen the verification of the respect of labour rights, the decentralization and increase of the resources of the Ministry of Labour and the ability to set up procedures for the registration of trade union organizations.

One of the major transformations achieved through this labour reform was that it had given the Ministry of Labour the capacity to sanction, that is to facilitate the sanctioning and protection of labour rights through administrative procedures. Last year, on the occasion of the direct contacts mission made to his country by the Committee on Freedom of Association, the Committee had qualified this reform as encouraging with a view to the application in law as well as in practice of Convention No. 87, particularly in Case No. 1970. As an example, the speaker mentioned that in January of this year a sanctions unit had been created, which had made possible the imposition of fines to 800 enterprises which had violated the relevant provisions (40 enterprises in January and 350 in May). In this manner, the Ministry of Labour had increased its efficiency to rectify situations which the labour courts would have taken months or years to resolve.

For its part, the judicial power was aware that international labour standards were indispensable, which was why in April 2002 it had requested technical assistance from the ILO and signed a cooperation agreement to that effect. Moreover, with the assistance of the MINUGUA, the Government was reforming the judicial apparatus of the country to strengthen labour justice. In relation to the fight against labour impunity, the Committee on Freedom of Association had referred to Case No. 1970 in its report of November 2000 and had noted with interest that, prompted by the direct contacts mission, a special unit of the General Ministry, aimed at improving the efficiency of investigations of crimes committed against trade unionists, had begun to function in June of the same year. He indicated that the Government reiterated its commitment to continue to respect the recommendations of the aforementioned mission and of the Committee on Freedom of Association, as well as the observations of the Committee of Experts.

To this effect, on 8 February 2002, a high-level labour committee had been created, integrating ministers and trade union representatives of the Popular and Trade Union Action Unit (UASP). It would deal, amongst other topics, with the new statute of the public service and the right to strike of state employees, which would respect the modifications emphasized by the Committee of Experts, including the repeal of Legislative Decree No. 35-96. In reference to the comments made by the Committee relative to the application of section 390, paragraph 2, of the Penal Code, the speaker confirmed that it had been abridged by the suppression of section 257 of the Labour Code. Moreover, he emphasized that, since the peace accords of 1996, the Government had prohibited the violation of human rights and had promised to construct an institutional democracy that would guarantee the effective exercise of human rights and fundamental liberties, including freedom of association. Aware that the respect of labour standards and rights was not only guaranteed through sanctions but also through initiatives, the speaker indicated having rewarded the Association of Corporations of Exporters of Non-Traditional Products for the concern it had shown regarding labour rights. It also resorted to dialogue with social partners which the Government remained ready to favour through tripartism, and specifically with the technical assistance of the ILO. The speaker hoped that, like the direct contacts mission and the Committee of Freedom of Association, the Committee would note with satisfaction the progress made in the country.

The Employer members observed that the Government had showed its preparedness to take appropriate measures following the comments that had been formulated in previous years by the Conference Committee, the direct contacts mission in 2001 and the discussions held in the Conference Committee. The Government had amended its legislation, which had been the subject of a long list of criticisms by the Committee of Experts. The Committee of Experts had noted the legislative amendments with satisfaction, which represented the expression of highest appreciation. Most of the amendments requested by the Committee of Experts in the past had referred to the right to strike. The Employer members were of the opinion that the Government would not have been obliged to introduce these amendments to comply with the provisions of the Convention, since it was the well-known employers' position that the right to strike did not derive from this Convention. It was, however, to the Government's discretion to decide upon its national legislation.

Only two issues remained the object of criticism by the Committee of Experts. The first issue concerned the requirement of being of Guatemalan nationality to be eligible to join the trade union executive committee. The Employer members noted the Government's indication that this requirement derived from the Constitution. Although it would take time to amend the Constitution, it was nonetheless possible. The Employer members observed that the Government representative had not given any indication in this regard. The second point criticized by the Committee of Experts referred to the requirement to be actually working in the enterprise or occupation in order to be eligible for trade union office. This provision was also known from other countries. Nevertheless, it was contrary to freedom of association, since it clearly was for the trade unions (and the employers' association) to determine who should take office. The Employer members believed that this had to be introduced in the national legislation.

Turning to the Committee of Experts' view on the right to strike, including its definition of essential services, the Employer members recalled their position that the right to strike did not derive from the Convention. In this regard, they did not support the Committee of Experts.

As to the practical application of the Convention, the Employer members observed that the prevailing political climate, characterized by administrative repression of trade unions, did not promote the exercise of trade union rights. The existing unfavourable political climate should therefore be reflected in the conclusions of the Conference Committee. The Employer members indicated that employers' associations were also the object of administrative harassment. A complaint had been submitted by some employers' associations and the Committee on Freedom of Association would examine it in the future. In conclusion, the Employer members did not consider the Convention to be applied in practice. Therefore, the Government had to take appropriate action to allow social partners to exercise their rights enshrined in Convention No. 87.

The Worker members thanked the Government representative of Guatemala for his explanations. This case had been on the agenda of this Committee since the 1980s. Given the fact that the situation was still far from being in conformity with the Convention, the Worker members considered it necessary to discuss it once again. The peace agreements signed in Guatemala in 1996 seemed to permit a passage to a new stage in the process of the pacification of the country. Unfortunately, genuine peace was possible only if social justice was guaranteed. But over the past few years, it appeared that social justice had not been necessarily respected. The exercise of freedom of association was almost systematically hampered. Following numerous cases of violation of freedom of association and multiple complaints examined by the Committee on Freedom of Association over the past few years, a direct contacts mission visited Guatemala in April 2001. This Committee once again discussed the case at the 89th Session of the International Labour Conference. Since then, Ms. Hilani, special representative of the Secretary-General of the United Nations, visited Guatemala in order to analyse the delicate situation of human rights, particularly trade union rights. In addition, over the past few months, other violations of the Convention, had been reported to the Committee on Freedom of Association.

In its latest report, the Committee of Experts highlighted legislative matters and problems of practical application of the Convention. Regarding the legislation, certain gains obtained by the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April 2001 and Legislative Decree No. 18-2001 of May 2001 led to progress on certain points. However, the Committee of Experts pointed out that other legislative provisions were still not in conformity with the Convention. Moreover, it requested particulars on the essential aspects related to the exercise of freedom of association which concerned provisions of the Penal Code imposing penalties of imprisonment on anyone engaged in acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Reference was also made to compulsory arbitration without the possibility of resorting to a strike in public services which were not essential in the strict sense of the term.

Regarding the application of the Convention in practice, the numerous cases examined by the Committee on Freedom of Association which were referred to in the Committee of Experts' report and evaluated by the direct contacts mission in the country, were unfortunately eloquent. These concerned in particular acts of anti-union discrimination, threats and violence against trade union leaders, violation of rights to bargain collectively and searches of trade union premises.

Regarding the murders of trade union leaders reported in Case No. 1970, the Worker members pointed out that the Committee on Freedom of Association concluded last March that it was important that the procedures relating to acts of discrimination should advance rapidly, since excessive delay was equivalent to a denial of justice. The Committee of Experts emphasized that trade union rights could be exercised only in a climate which was free of violence and pressure. It expressed the very firm hope that the Government would make every effort to ensure the effective observance of human rights and of fundamental freedoms essential to the exercise of trade union rights.

The Worker members wondered whether it was possible to guarantee fundamental human rights in circumstances where the workers' organizations were subject to searches, threats, dissolutions and where the right to strike was systematically under attack.

The Worker members shared the request reiterated by the Committee of Experts for the Government to ensure the application of the principles of the Convention. The Government should, without delay, take the necessary measures with a view to ensuring the following:

- amendment, without further delay, of legislative provisions which infringed the provisions of Convention No. 87;

- the provision, as early as possible, of the information requested by the Committee of Experts as regards legislative provisions concerning arbitration and those of the Penal Code concerning penalties of imprisonment in the case of acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country;

- the provision of a genuine protection of trade union leaders and their activities to ensure them of a climate of peace and security, that guaranteed an impartial, rapid and efficient judicial system and reinforced the social dialogue;

- the lifting of the impunity protecting the perpetrators of physical and intellectual anti-trade unions acts, which included numerous cases of threats against trade union leaders.

The Worker members recalled that the Preamble to the ILO Constitution emphasized that genuine peace could be established only if it was based on social justice. Social justice depended on the free exercise of a fundamental right, freedom of association, which in turn was closely related to the effective observance of human rights and fundamental freedoms.

The Worker member of Guatemala stated that many of the members present at this meeting had witnessed and heard, to the point of saturation, constant denunciations of violations of the human rights of Guatemalan workers, especially those pertaining to freedom of association. He therefore thanked the Committee on Freedom of Association for sending a direct contacts mission last year in order to verify in situ the effect given to the recommendations of Case No. 1970. This case, which was far from being an isolated one, related, among other allegations, to acts of violence, death threats, assassinations, breaking and entry, and attempted abductions, acts of anti-union discrimination, physical aggressions and other violations. The Committee on Freedom of Association had expressed itself carefully on this tragic situation and had stated that it had been profoundly concerned by the excessive length of the proceedings which amounted to a denial of justice. If one day justice were done, it would often be after about three to eight years of slow, non-transparent and exhausting procedures destined to discourage and destruct the unions which had become distrustful of the law, justice and democracy. No doubt, the workers did not ignore the legal and theoretical reforms which had been mentioned on the occasion of the direct contacts mission and introduced by Legislative Decrees Nos. 13 and 18 of 2001 by which the Labour Code had been amended. However, these reforms had been introduced and approved without consulting the trade union movement, contrary to Convention No. 87 and the requests that the ILO had formulated already many years ago. Moreover, they had not led to the introduction of the fundamental changes that had been hoped for and that the national trade union movement had incorporated in the draft reform of the Labour Code to which the previous Labour Minister had adhered at the 88th Session of the Conference. Since the democratic transition had started in Guatemala, eight labour ministers had participated in this Committee, conscious of the tragic conditions surrounding the trade union movement of Guatemala especially in the sectors of agriculture, textiles and public service at the municipal level. The anti-union dismissals, like those complained of in Case No. 1970, remained unpunished in spite of the court orders of readmission. The ministers in charge of implementing the law did not have the necessary support from the police to oblige the employers to execute the court orders but did have such support when it came to proceeding with the removal of workers. The exclusion and privileges were reprehensible and justice delayed was no justice at all. The suffering inflicted upon workers by the violation of freedom of association was not demonstrated only in Case No. 1970, since the Committee on Freedom of Association had heard a whole series of denunciations of violations of Convention No. 87, namely for unjustified dismissals with use of force, abductions and death threats of trade union leaders, and assassinations which had been left unpunished. In the public sector, the Government had issued a government agreement (No. 60 of 2002), which prohibited not only strikes but also collective bargaining in this sector, in order to satisfy the commitments made towards the International Monetary Fund. The corruption and impunity prevailing in the country manifestly put into question the legitimacy of democratic institutions and severely hurt the Guatemalan trade union movement. The speaker thanked the various solidarity missions of the trade union movement all over the world, and asked for the inclusion of his country in a special paragraph.

Another Worker member of Guatemala referred to pages 267-269 of the Committee of Experts' report and stated that the amendments to the Labour Code aimed at adapting its provisions to the Committee of Experts' recommendations did not signify that freedom of association was respected in the country. Indeed, the country had not yet adjusted its legislation on all the recommended points. More particularly, it was necessary to repeal the provision of the Penal Code (section 390(2)) imposing a penalty of imprisonment of 1-5 years for anyone engaged in acts aimed at paralysing or disrupting the running of enterprises which contributed to economic development of the country, with the intention of causing damage to national production. Similarly, it was necessary to repeal the requirement of compulsory arbitration before resorting to a strike in public services such as public transport and energy provision, which were not essential in the strict sense of the term, as well as the prohibition of inter-union sympathy strikes. He underlined the fact that the Government had submitted a series of amendments to the Labour Code which were prejudicial to workers, in that they were denaturalizing the procedural labour law, enlarging the powers of judges and jurisdictional functions of the Ministry of Labour, thus worsening the labour rights situation. Freedom of association only existed on paper, since in practice, workers were victims of dismissals and changes that worsened their conditions of work. The lack of conformity of the national legislation with the international instruments was a violation of Convention No. 87: workers could not establish trade unions, public and private employees were victims of persecutions and threats for their union activities, and certain workers had to wait for more than seven years to be reinstated in their jobs, having been dismissed without a valid reason. In this climate of labour impunity, three workers of the enterprise "Exacta S.A." had been murdered by the national police, and the Public Prosecutor had failed to prosecute those responsible, claiming there was insufficient proof of their guilt. All these allegations were submitted in cases Nos. 2017 and 2202 treated by the Committee on Freedom of Association. The speaker suggested that this Committee should include the case of Guatemala in a special paragraph of its report.

The Worker member of the United States wanted, before proceeding with his intervention, to respectfully acknowledge the tragic passing away of Juan Francisco Alfaro, former Guatemalan Labour Minister and former General Secretary of the United Trade Union Confederation of Guatemala. His death was an irreparable loss for the inter-American and international labour movement. In spite of the conventional wisdom that somehow Guatemala had improved due to the 2001 labour law reforms and due to the interruption of the continued review of this country under the United States General System of Trade Preferences, Guatemala's violations of Convention No. 87 had only worsened. The right to strike in the rural sector could be undercut by the power of the executive to proscribe work stoppages which seriously affected the economic activities essential to the nation. Despite the reform of section 255 of the Labour Code, a judge still had the power to despatch the police to guarantee strike replacement as a "precautionary measure". The new section 216 required written proof of the will of 20 or more workers to form a union, thus making for a written disclosure of pro-union activists and imposing a literacy requirement. The Labour Code imposed a potentially prohibitive threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. Section 233 increased the requirement from two to four unions to form a federation and from two to four federations to form a confederation. Finally, the new section 379 imposing liability on individual workers for legal damages resulting from a strike or other collective action created a chilling effect. More importantly, de facto violations of Convention No. 87 persisted due to the state of general impunity for the perpetrators of assassinations and death threats directed against Guatemalan trade unionists, including José Pinzon who had fortunately survived and was present today. This was reflected in paragraphs 85-89 of the November 2001 Report of the Committee on Freedom of Association (CFA). The Guatemalan Labour Justice system condoned this general state of impunity with respect to anti-union discrimination as the Committee on Freedom of Association had concluded in paragraph 91 of its November 2001 report, noting the findings of the ILO contacts mission of 2001. The Guatemalan Labour Ministry itself had admitted in November of last year that very few cases of anti-union dismissals had been sanctioned with financial penalties, even fewer of which had been actually paid. He joined with the other members in calling for a special paragraph in this case.

The Worker member of Norway spoke on behalf of the workers in the Nordic group, who were well acquainted with the oppression of Guatemalan workers by their own Government. Trade unions in Guatemala sent to the Nordic national organizations frequent messages of murders, death threats and serious injuries. On paper the situation might look better as issues earlier raised by the Committee of Experts seemed to have been settled through a number of legislative decrees adopted by the Guatemalan Congress, thus bringing the Labour Code more into conformity with Convention No. 87. There were however still provisions which were not in conformity with the Convention and she shared the Committee of Experts' concern that provisions in the Penal Code might still have full effect in spite of the same provisions having been repealed from the Labour Code. This related, for instance, to provisions giving the right to arrest and put on trial anyone publicly attempting a strike or unlawful work stoppage. The Government had just provided assurances on this matter and she looked forward to seeing a change in practice on the part of the Government. Her greatest concern, however, was whether all these new provisions were just lip service. Workers were being threatened, assassinated, and still dismissed for attempting to set up unions, and bargain collectively. The labour courts were ineffective and cases brought before them could drag on for up to five years. The labour inspectors, far from ensuring respect for workers' rights, were often more likely to persuade workers to renounce their rights. In some cases when the workers requested the inspection of the workplace, the inspectors called the employers in advance to warn them of their visit. These days the State itself was guilty of serious violations of labour rights. One hundred seventy workers had been fired in the National Banco Crédito Hipotecario with immediate effect and without consulting the judge in charge of reviewing the institution. In order to avoid communication between the workers and the union, telephone lines and internal electronic mail had been cut and the number of guards had been doubled. In the export processing zones the firms established were notorious for anti-union behaviour and there were no collective agreements for any of the more than 80,000 workers in this sector. Workers who attempted to organize a union were fired immediately. Factories were moved to a new location or given a new name so that workers who wished to organize could be dismissed and new more compliant workers hired for the same jobs. She fully shared the concerns of the Committee of Experts regarding murders, acts of violence and death threats against trade union members as reported by the Committee on Freedom of Association. Through cooperation with organizations like UNSITRAGUA, it had been demonstrated that discrepancies between the newly adopted legislation and the practices of the Government were worse than outsiders were able to comprehend. A country that characterized itself as democratic and had ratified all ILO core Conventions could not allow such actions to take place. This showed lack of respect for the ILO, and contempt towards Guatemalan workers and their fundamental rights. This Committee must urge the Government of Guatemala to bring its practice into conformity with both Convention No. 87 and its own labour legislation. The situation was so serious that she joined the other members in asking that Guatemala be included in a special paragraph.

The Worker member of Brazil recalled that this case had already been discussed by the Committee on eight occasions. The peace accord announced in 1996 had created the hope that Convention No. 87 could finally be fully applied in Guatemala. However, since that date, anti-trade union acts had not ceased to increase. He stated that it must be concluded, in the light of the comments made by the supervisory machinery, that the peace accord did not have any effect in the world of work. The Congress of the Republic of Guatemala had begun a reform of the Labour Code just before the beginning of the 2001 session of the Conference, and had thus modified many sections that were the object of comments made by the Committee of Experts. However, many of the criticized sections remained unchanged, in particular: the imposition of compulsory arbitration (Decree Law Nos. 71-86 and 35-96), the decree maintaining the surveillance service upon the creation of a trade union which could be the source of the interference by the executive authority, the restriction of the participation of foreign workers in the executive committees of trade unions; the requirement of a minimum number of workers for the formation of a trade union, which remained higher than that accepted by the Committee on Freedom of Association; the authority given to the Executive in the registration of trade unions; and the numerical requirements for the creation of federations and confederations. Furthermore, the protection of elected leaders provided for by the amended section 209 of the Labour Code remained insufficient to ensure the application of Article 11 of the Convention. Regarding the possibility of interventions of judicial and executive authorities in the exercise of the right to strike in the essential public services sector (section 243 of the Labour Code), while the amendments introduced appeared to have reduced the scope of this intervention, the Committee of Experts had not specified to what extent the situation had actually changed. The power left to the Executive in this field made it easily conceivable that the police forces would continue to limit the exercise of the right to strike. Moreover, he recalled the frequency with which trade union leaders were threatened, intimidated or detained. The Committee on Freedom of Association had indicated in this regard that the frequent imprisonment of leaders in these circumstances was typical of a restricted situation of freedom of association. Finally, he emphasized, as was done by the direct contacts mission and as was also brought out by the numerous complaints filed to the Committee on Freedom of Association, the slowness with which justical decisions were rendered. In this respect the Committee on Freedom of Association had specified that late justice was a denial of justice. Under these circumstances, the Government should take real action, including measures of judicial reform, so as to ensure the effective application of the rights and principles contained in international Conventions that it had undertaken to respect. The speaker supported the request made to include the case in a special paragraph.

The Worker member of Spain stated that in this case the Committee found itself faced with a typical and frequent situation of a discrepancy between legislation and reality. The legislation reflected in the first paragraphs of the report was due in part to the direct contacts mission headed by the ILO, which in fact had proved to be efficient in changing the legislation, but not the reality. This resulted in a manifest hypocrisy, for legislation that was not reflected in reality was a dead letter. The reality included, in the constant violation of trade union rights on all levels, the infringement of the right to strike and social injustice. Contrary to what had been stated by the Employer members, the speaker affirmed that the right to strike was covered by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and along with the right to bargain collectively, constituted one of the pillars of trade union rights. The systematic violation of the right to strike in Guatemala was due in part to the imposition of compulsory arbitration. In this respect, the speaker demanded that this country be included in a special paragraph.

The Government member of Mexico stated that since the previous session of this Committee, when the Government of Guatemala had been invited to report on the application of the recommendations made by the Committee of Experts, the Government had observed progress in the reform of the Labour Code introduced by the Guatemalan Congress to bring the national legislation in line with Convention No. 87 and, in particular, to comply with the requests that had been formulated by the Committee for a long time. She welcomed that the Experts had mentioned in their report the amendments to the Labour Code which had allowed to adapt internal legislation to the aforementioned instrument. She also noted with interest the commitment of the Government of Guatemala to continue the implementation of this reform and to give workers the necessary means to effectively exercise their labour rights. As in the previous year, the speaker asked that the progress mentioned by the Committee of Experts and confirmed by the direct contacts mission be included in the conclusions of this Committee. She encouraged the Government of Guatemala to maintain its close collaboration with the Office and with the supervisory bodies of the ILO, in the aim of obtaining a true guarantee of the respect of labour rights in the country.

The Worker member of Colombia stated that Guatemala was a country in which 75 per cent of the population was concentrated in the rural area, of which almost 80 per cent lived under the poverty threshold and many died of starvation. Sixty-seven per cent of the population worked in the informal sector. He stated that though it was certain that the Committee of Experts had welcomed the fact that the Government of Guatemala had harmonized its labour legislation with the instruments of the ILO, it was no less certain that in the present day, complex situations preventing the full development of freedom of association in Guatemala still prevailed. Specifically, last year, the Government had expressed its respect to the supervisory bodies of the ILO and had acknowledged the need to improve labour conditions in the country. Despite this, words did not always coincide with facts, which was why Guatemalan workers did not stop asking for assistance from the global trade union movement in the struggle against anti-trade union acts such as the breaking and entering of trade union premises and the detention, disappearance and assassination of trade unionists. The Workers were used to hearing in this forum promises from the Government representatives according to which legislation would be brought into conformity and workers' rights would be protected. Unfortunately, years went by and the situation remained the same. For this reason the Government of Guatemala should take the necessary measures to answer the workers' requests and fully ensure the right to establish organizations, to bargain collectively and to strike. Nowadays, poverty, unemployment and social instability have aggravated, the number of poor and marginalized people has increased and the number of rich people has decreased.

The Government representative, after having listened to the Worker and Employer members, reiterated his previous statement and stressed, more specifically, that his country was about to leave behind an exclusionary political system that had persisted for more than 100 years, and had given rise to the internal armed conflict, which was why there was no easy way to eradicate the culture of confrontation persisting between social partners, on the one hand, and between social partners and the institutions on the other. In respect of what had been put into question, he referred again to the concrete measures already take by the Special Prosecutor constituted in order to punish crimes perpetrated against trade union leaders, to the creation of the Sanctions Unit responsible for ensuring workers' rights and to the labour law reform. He added that in this effort, his Government had invited the Special Representative of the Secretary-General of the United Nations for the Human Rights Defenders and had undertaken a policy of human rights reparation under which the State had spent a huge amount in order to compensate numerous workers of the Ministry of Culture who had been unfairly dismissed. The speaker again stressed on social justice and the need to rely on ILO technical assistance in order to implement international Conventions. Finally, he referred to: the amendments that were still pending and had been requested by the Committee of Experts, concerning the requirement to be of Guatemalan nationality in order to participate in the creation of an executive committee of a trade union and the obligation to be a worker of an enterprise or of the concrete economic activity to be eligible as a trade union leader; as well as the doubts expressed concerning the enforcement of section 390, paragraph 2, of the Penal Code. He stated that his Government had committed itself to submit these points to a tripartite committee, by virtue of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

The Worker members stated that they could not but observe the existence of serious problems related to the application of Convention No. 87 in Guatemala and the criminalization of trade union activities. The infringements noted concerned the application of the Convention in law as well as in practice. Urgent measures had to be taken. Regarding the legislation, the Government must take steps to amend without delay the provisions violating respective Articles of Convention No. 87 and the right to strike as recognized by the Committee on Freedom of Association; to provide at the earliest possible date the information requested by the Committee of Experts concerning the provisions of the Penal Code imposing compulsory arbitration and a penalty of imprisonment in case of paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Regarding the application of the Convention in practice, the Government must prove a true will to protect trade union leaders and their activities, by ensuring a climate of peace and security, as well as the existence of an impartial, rapid and efficient judicial system, and reinforcing social dialogue. Finally, the Government must lift the impunity which protected the perpetrators of anti-trade unions acts, which included threats against the physical integrity of persons and manslaughter of trade union leaders. Taking into account this difficult and even tragic situation, as well as the absence of real improvements, the Worker members requested that this case be included in a special paragraph and that the Employer members consider such a possibility.

The Employer members stated that this case had two sides: on the one hand, the Committee of Experts had noted considerable progress in its comment under the Convention and in the General Report, and on the other hand, there remained action to be taken by the Government in order to fully comply with the Convention. With regard to the progress achieved, the statements of the Worker members were somewhat strange. The Worker members usually praised the Committee of Experts for their knowledge, wisdom and objectivity. During this discussion, the Workers had adopted a different attitude. The Employer members agreed, however, that the continuing state interference with trade union affairs was not acceptable. The Government had to take the necessary measures and the Employer members noted the Government's preparedness to undertake the necessary amendments to the legislation. They said that legislative action in relation to the right to strike was not needed from their point of view. The Government, however, had to ensure the application of the Convention in law and practice. They recalled that the signed peace agreement could not immediately bring to an end a civil war that had lasted over decades. Moreover, they believed that not every problem could be solved by the adoption of legislation. A trade union-friendly culture had to be established, which would take time. In conclusion, the Employer members disagreed with the Worker members' request to place the Conference Committee's conclusion in a special paragraph. In the light of the legislative amendments which marked a considerable progress, it went against the established tradition of this Committee to include in a special paragraph, a country which had previously been considered as a case of progress by the Committee of Experts.

The Worker members deplored that there could not be a consensus in favour of the inclusion of this case in a special paragraph of the Committee's report.

The Committee took note of the statement made by the Government representative and the discussion which took place thereafter. The Committee welcomed the positive measures taken during and shortly after the ILO direct contacts mission which took place in the country. The legislative decrees adopted on this occasion had allowed to eliminate some of the obstacles to the application of the Convention which had been raised by the Committee of Experts over many years. Nevertheless, the Committee observed that difficulties subsisted in respect of the eligibility requirements for trade union officers. It requested the Government to rapidly take measures to lift these obstacles to the application of the right of trade unions to elect their representatives freely, recognized by Article 3 of the Convention. The Committee also noted with concern that new cases had been submitted to the Committee on Freedom of Association, both by workers' and employers' organizations. These cases revealed significant difficulties for workers' and employers' organizations in the practical exercise of their activities, due in particular to the acts of violence committed against their members. Recalling that the respect of civil liberties was essential for the exercise of trade union rights, the Committee expressed the firm hope that the Government would take the necessary measures, in close collaboration with the social partners so that workers' and employers' organizations could exercise their activities in a climate free from violence and that the Convention could be fully applied both in law and in practice. The Committee requested the Government to provide detailed information in its next report for examination by the Committee of Experts.

The Worker members deplored that there could not be a consensus in favour of the inclusion of this case in a special paragraph of the Committee's report.