Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

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

A Government representative (Minister of Labour and Social Security) declared his firm conviction that the mechanisms of control on the application of international standards that the ILO had put in place created an important mechanism for cooperation for the country. The observations of the Committee of Experts were objective, sincere and useful in order to strengthen the institutional regime, the governance and the democracy of Guatemala. The correct utilization of the observations of the Committee of Experts permitted the Government and the social partners to position themselves so that they do not lose sight of the true sense of international labour legislation.

The speaker recalled that Guatemala has faced significant obstacles in its history of confrontation and ideological intolerance. The advances that have been presented in the observations of the Committee of Experts seem small, but in Guatemala constituted true progress if one takes into account the profound problems that have to be confronted by means of effective social dialogue. In order to continue advancing, there was a need to count on the support of the Committee, the Conference, the Employers, and principally the trade unions.

In relation to the observations of the Committee of Experts, the speaker enthusiastically expressed the recognition of the sincere political will of the Government to collaborate with the ILO during the direct contacts mission conducted in 2004 and the positive assessment of the commitments made by the Government. With this sentiment the Government representative stated that his Government has promoted the integration and the function of the Tripartite Commission of International Affairs, which has met and worked in uninterrupted form from 2004 to the present and has obtained advances in the consultation and agreement for the creation of a mechanism of "immediate intervention" in order to examine the complaints within the competence of the Committee on Freedom of Association and the observations on the application of international conventions, that will begin to function soon. The complaints that are not sent directly to the ILO, except in the instance of problems of national interpretation, can be resolved in the country. Likewise, the Government analysed with the employers and trade unions the necessary legal reforms to overcome the problems that they had with the reforms of 2003, in particular the existence in the national penal legislation of provisions against freedom of association principles. The Government looked to address the aspects indicated by the Committee of Experts in relation to ILO Conventions Nos. 87 and 98, the eligibility requirements for becoming a trade union leader, the legal criteria to establish the necessary votes to call a strike and the legal definition of essential services in relation to the exercise of the right to strike. In this respect, the Tripartite Commission has arrived at a consensus to undertake the legal reforms necessary that permit adaptation of the Labour Code to the relevant international standards on discrimination in employment and occupation. In this sense, the Government has presented a proposal to Congress for its approval. Many of the problems identified by the Committee of Experts have been resolved through laws that have amended problematic provisions, as in the case of Government Decree 700/2003.

In relation to the commitments made before the direct contacts mission, the Government representative stated that his Government has met all of those and noted concrete advances in the approval of initiatives for legal reform that the Tripartite Commission had accepted and requested the assistance of the Office, in order to organize the first national seminar on labour rights and freedom of association.

With respect to the competence of labour inspection regarding trade union rights of civil servants, the labour inspection is competent to hear complaints of violations of trade union rights of public employees and act as a mediator, as has been affirmed in various rulings of the Tribunal of Conflict of Jurisdiction of the Supreme Court of Guatemala. The mechanism to deal with this was actually being used to obtain an alternative solution to collective conflicts between public sector workers and their employers.

With regard to the creation of trade unions in industry, the speaker noted that it was only a problem of interpretation of the applicable legislation, and that section 215 of the Labour Code, that did not violate any principle of freedom of association by providing that in order to form and industry trade union, at the branch level, workers can establish unions at the enterprise level so long as they were all of a similar nature. If a union movement did not have a sufficient number of members to establish an industry trade union they could then establish an enterprise union where they could group with a variety of enterprises of the same nature, and where they needed only 20 workers. If today no such union has been established, this was because the trade union movement was not as yet sufficiently developed.

With respect to the imbalance between trade unions and solidarist associations, the speaker noted the operational deficiencies in tabulating the real number of active trade unions and their affiliates. The Government has worked to overcome these deficiencies in a project to systemize the labour register, but it would take time to complete this project due to the lack of funds. The speaker requested the support of the Office in finalizing this project. The indicator of the number of solidarist associations and their affiliates was a result of a unilateral declaration of these associations although there were no objective elements to confirms that there was in practice violation of trade union rights.

The speaker recognized the existence of certain institutional weaknesses in Guatemala for this type of crime. The acts of violence have diminished considerably and the Government supported the interventions of the authorities to complete their investigations quickly and effectively. The speaker noted that the Government was considering a protection mechanism recommended by the direct contacts mission in 2004. In closing, the speaker observed that the Committee of Experts had recognized the efforts of the Government by listing the country among those who had made progress. He requested that the case of Guatemala should not be mentioned in a special paragraph since this would not contribute to the strengthening of national institutions.

The Worker members indicated that, although the information presented by the Government of Guatemala tended to show progress, the reality refuted these assertions. The changes mentioned by the Committee of Experts in its report should be greeted with caution, taking into account the new facts which reinforced the concerns raised by the many elements that demonstrated the persistence of the violation of Convention No. 87 in Guatemala. While, according to the report of the Committee of Experts, the labour inspectorate would have the power to impose sanctions in case of violation of trade union rights, in fact the Constitutional Court had restricted this power in August 2004 and the labour inspectorate was often not on the side of the workers during social conflicts. On this point, further information on the staff of the labour inspectorate, the sanctions imposed in case of freedom of association violations and their effective application would be necessary. The Worker members underlined that Act No. 35 of 1996, known as the anti-strike act, still prohibited workers in public services from striking under penalty of imprisonment. This was sufficient to demonstrate that the restrictions of the Guatemalan workers' rights had not yet been lifted.

The Worker members protested against the assertion of the Government that "civil society" organizations tended to show little respect for the institutional means for addressing labour disputes, an assertion which tended, in their view, to discredit the social partners when these claimed the application of the rights and procedures to which they themselves were submitted.

The Worker members underlined that the rule imposing a requirement to be of Guatemalan nationality and working in the enterprise or sector concerned in order to be elected as trade union leader, remained in force although it had been found contrary to Convention No. 87, just like the rule imposing a requirement of 50 per cent plus one of the workers in the sector in order to be able to establish an industry trade union, a fact which created interminable delays or even refusals of trade unions' registration. This situation was in contrast to the assertions of the Government which claimed that the situation had gotten back to normal and attributed the length of the delays to the workers, on the grounds that they "had failed to present documents", an assertion which demonstrated by the way that, in reality, the situation had not yet returned to normal. Moreover, with regard to the "maquila" sector, the Government had mentioned the existence of two trade union organizations, which were really few in relation to the number of enterprises in this sector.

The Worker members also underlined that the confusion which endured on the subject of registration of trade union organizations in the taxation register, on which the Committee on Freedom of Association had already pronounced itself, appeared to allow the carrying out of controls over trade unions at any time. Moreover, the obstacles in the area of collective agreements remained numerous in practice: pressure on trade unionists, arbitrary dismissals of trade unionists, etc., as well as problems already raised with regard to the judicial power such as corruption, influence peddling, lack of vocational training, partiality, unexpected interventions by the Constitutional Court paralysing the action of the Labour Ministry. The Worker members noted a certain incoherence in this respect between the Guatemalan authorities, which had recognized the existence of a structural problem in the administration of justice as a whole, and the comments of the Committee of Experts which gave the impression that the changes made would guarantee an immediate handling of the problems relative to freedom of association. They also raised the incoherence between the announcement of the acquittal of Mr. Rigoberto Dueñas and the new charges brought against him by justice due to an appeal lodged in the Appeals Court, despite the conclusions of the Committee on Freedom of Association, the direct contacts mission and the messages of support by employers rallied in the Coordination Committee of agricultural, commercial, industrial and financial associations (CACIF).

The Worker members stated that the principle "in dubio, pro operario", according to which the most favourable legal rule should apply to workers in case of doubt, was largely refuted in practice as it was more common to decide a case on the basis of often biased legal precedents in contempt of the legislative prerogatives of Congress. They denounced the tendency to systematically take away labour conflicts from the competence of the Labour Ministry in order to bring them before the penal courts so as to prosecute and reprimand trade union leaders by reason of their social action.

The Worker members denounced the persistence of several facts: (i) the climate of violence and the acts which impeded the free exercise of freedom of association as illustrated by the numbers provided by the Government: 42 acts of violence in 2002-03 for example; (ii) the impunity which surrounded the acts of violence committed against trade unionists; and (iii) the persistence of threats and harassment against trade union leaders as demonstrated by the recent repression of the demonstration against the adoption of the free trade treaty, which had been adopted without consultations with the social partners despite its decisive impact on employment. They also denounced the acts of unauthorized entry into the trade union premises of several trade unions on 9, 10 and 11 May 2005, which had not given rise to any investigation, as well as the violence faced by workers in the informal economy, like Julio Rolando Raquel, secretary-general of a trade union, murdered at the end of 2004 without any legal proceedings having been instituted against the perpetrators of this act, an example which was unfortunately part of a very long list.

Finally, the Worker members differentiated themselves in relation to the assessment of the Committee of Experts which was too optimistic in their view, considering that: one could not talk of progress as long as trade unionists were being murdered, harassed or threatened; repression was being aggravated; so many cases (12) remained pending before the Committee on Freedom of Association; so many problems of application of Conventions Nos. 87 and 98 remained in practice.

The Employer members thanked the Government for providing complete and comprehensive information and noted that the ILO's 2004 direct contact mission was successful. They welcomed that the Government extended the mandate of the mission to Convention No.

87. The number of issues dealt with by the Committee of Experts had decreased but a number of problems remained. The Government worked towards solving them through the National Tripartite Committee. It was a central principle of the Convention that freedom of association could only be realized in an atmosphere free from violence and intimidation. The cases of violence against trade unionists, including cases of murder, were entirely unacceptable. While the Government established a Special Public Prosecutor, the results achieved were mixed and there was no information available to determine whether the measures taken were adequate. The Labour Code's requirement that trade union leaders be of Guatemalan origin was not in accordance with the Convention. Regarding the need to have "50 per cent plus one" of those working in an enterprise as a requirement to form an industry trade union, the Employer members stated that that percentage was too high. However, it was unclear on how the rule worked in practice in terms of the ability of smaller unions to engage collective bargaining. As to the right to strike, the position of the Employer members was well known. Due to the different situations from country to country, no single approach could exist in respect to the quorum required to call for a strike. Similarly, concerning essential services in which compulsory arbitration could be imposed, no "one-size- fits-all" approach was possible, as a given service may be essential in one country, but not in another, depending on the respective levels of development. In conclusion, the remaining problems went beyond questions of interpretation and the Government needed to do more to ensure the application of the Convention in law and practice. Further ILO assistance would facilitate the resolution of the outstanding issues.

The Worker member of Guatemala noted that while it was true that the situation in his country was examined in the past because of the persistent failure of the Government to apply ratified ILO Conventions, it was necessary to pursue, perseverance was required to ensure that pending issues were settled. Fifty years after ratifying Convention No. 87, Guatemala continued to prevent the forming of new trade unions in the country, when not seeking to eliminate those that already existed, as had been the case in the National Centre of books and didactic texts "José de Ipiña Ibarra" of the Ministry of Education (CENALTEX) company or in certain communes of Retahuleu, Tecun Human etc.

The speaker mentioned hurdles put in the way of trade unions in the country, even after they had been recognized and legalized by the Ministry of Labour: Leaders threatened, intimidated, persecuted or dismissed. Although, after the direct contact mission's visit the Government decided to free trade unionist Rigoberto Duenas, none of the charges against him actually being sustainable, a high court decided to take legal action against him, completely ignoring the information provided to the Committee of Experts. Secondly, the Committee of Experts received information according to which "the Labour Inspectorate was granted certain jurisdiction in the system of sanctions provided in case of non-respect of trade union freedoms", once it was ascertained that such sanctions had in fact been taken. The Constitutional Court had declare this jurisdiction to be unconstitutional, thereby creating a gap in the applicable law as a result of the disappearance of the jurisdictional body authorized to impose fines.

The speaker pointed out that the workers were the target of various acts of aggression - 122 were recorded in 2004, 68 to date in 2005, of which 12 in recent weeks: The judiciary had shown little diligence - 90 per cent of cases were filed and forgotten. Though in many previous cases, investigations had been opened, as had been the case following the death of trade unionist Julio Raquel, whose own wife has identified the culprits, the Public Prosecutor had not been diligent in any respect.

This demonstrated an absence of judicial capacity and an absence of political will by the Government to act The speaker mentioned that the Government had put obstacles to the opening of the Office of the UN High Commissioner for Human Rights, which demonstrated the lack of will on behalf of the Government to put in place the conditions required for the effective application fo human rights and freedom of association in the country.

The Labour Code clearly provided for the reintegration within 24 hours of a worker who had been dismissed for having formed a trade union, which showed that the problem at the centre of violations of these rights lay in the lack of will by the State to have them respected.-Thus workers had to wait light years for a court to pass verdict on their case, while others charged with other offences were provided with immunity from prosecution by the labour tribunals.

The clauses in section 390 and 430 of the Guatemalan Penal Code considered as penal all labour conflicts involving the workers. At the same time, when a worker pressed charges for flagrant abuses of his rights by an employer, the competent authorities remained silent. If, on the other hand, an employer pressed false charges against a worker, as was the case with the Maria de Lourdes agricultural enterprise, measures were immediately taken against the workers. Many men and women workers in this enterprise had been dismissed for having helped to form a trade union.

In the last two years, Government policy on workers' demonstrations consisted in accusing union leaders of terrorism. The President of the Republic had publicly threatened to imprison leaders at demonstrations. Several cases had confirmed this stance. A demonstration by the pilots' union had led to the imprisonment of 30 union leaders; a demonstration by the street traders' union had led to the imprisonment of 11 union leaders; another demonstration had led to the death of a child; another ended with the eviction of farmers in the Retahuleu district, with several deaths and many incarcerations. During demonstrations against the free trade agreement, thanks to the solidarity shown by the Prosecution for Human Rights, it had been possible to free all the leaders after the police had surrounded the offices where they were meeting and putting them in jail.

In conclusion, the speaker appealed to the solidarity of government and workers around the world, as well as to the ILO, to give Guatemalans the opportunity to live in dignity and obtain justice.

The Employer member of Guatemala expressed satisfaction with the progress noted by the report of the Committee of Experts and by the present Committee itself as being due to the merit of the national authorities and the employers. Progress on Conventions No. 98 and 129 had been clearly emphasized, and there had been positive comments on Convention No. 87. The direct contact mission of May 20045 noted a reduction in violence as well as a real will to submit various issues related to legal reform to tripartite discussion. The Congress of the Republic could then incorporate the national tripartite agreements into national legislation.

In Guatemala, the current climate was favourable to positive and concrete steps being taken to bring national legislation into conformity with international labour Conventions. The Constitutional Court had even recently recognized the competence of the judicial system to take sanctions against non-respect of freedom of association principles. This did not mean to say tha a legal void had existed prior to this regarding the imposition of sanctions, but that the courts could henceforth impose them.

In his opinion, some trade union organizations were taking part in tripartite dialogue while others preferred using the complaints procedure at national level. Events were currently leaning towards some legal issues - which, nevertheless, did not concern constitutional reform of the regulation of the right to strike, on which Convention No. 87 said nothing - being resolved by social dialogue. The ILO should show confidence in the process currently underway in Guatemala. In any case, the exercise of trade union rights had to conform to the law. No illegal practices could be allowed under the cover of freedom association.

The Government member of Norway, speaking also on behalf of the Governments of Denmark, Finland, Iceland and Sweden, noted the information supplied to the direct contact mission by the Special Public Prosecutor's Office, indicating a significant decrease in physical violence, while the number of cases involving threats and coercion had increased considerably. According to the Government, all cases relating to murder and other offences were still at the stage of investigation. This situation was of grave concern. Criminal proceedings were extremely slow and impunity was the norm in cases concerning trade unionists. The Nordic countries emphasized that trade union rights could only be exercised in an atmosphere which is free from violence and coercion. As requested by the Committee of Experts, the Government should be asked to provide information on any offences against trade unionists reported to the Special Prosecutor's Office. It was hoped that the Government would make every effort to ensure full respect for trade union members' human rights and that concrete progress on the above-mentioned point could be noted in the near future.

The Worker member of Panama denounced the violence and aggression shown by the Guatemalan authorities towards the trade union movement. He said that, in a letter addressed to the Vice-President of the Republic of Guatemala, he had condemned 122 acts of aggression committed in 2004 and 68 recorded to date in 2005 (of which 12 had taken place in recent weeks). In Guatemala, illegal armed groups and secret wings of the security services (CIACS) were acting in concert with thee security forces and were partly linked to organized crime and certain employers' organisations. The Prosecutor for Human Rights had condemned both the impunity that CIACS enjoyed and its collusion with the military intelligence services and organized crime. The UN Verification Mission to Guatemala had also declared the situation alarming. CIACS had been blamed in complaints lodged concerning human rights abuses, but no judicial proceedings had been initiated to allow investigations to be opened on these crimes and to find the guilty parties.

As regarded the situation concerning trade unionist Rigoberto Duenas, the speaker was confident that a final solution would soon be found to obtain his release. The Government of Guatemala seemed not to have the political will to address illegal acts against freedom of association and it had to be requested to provide information of complaints that had been lodged.

The Worker member of Costa Rica stated that a purely juridical analysis could not explain the Guatemalan problem. As regarded the trade union situation, the Government had shown itself to be unable to deal with complaints concerning illegal dismissals or violation of collective agreements. Joining other speakers in condemning the situation, he referred to the rigid attitude of the legal system which passed laws contrary to workers' rights and which benefited solidarist associations. The speaker also recalled that legal procedures related to the Mi Terra and El Tesoro estates, to the municipality of Livington and the El Anco estate had been ongoing for many years without producing concrete results. The workers members finally expressed his solidarity with unionist Rigoberto Duenas.

The Government member of El Salvador expressed her understanding of the situation in Guatemala and referred to the statement made by the Government representative. The efforts made by the Government of Guatemala to overcome the difficulties highlighted in the Committee of Experts' observations should be praised. The Office should support such efforts.

The Worker member of Norway recalled that the Committee had asked the Government to rectify breaches of the Convention for many years, and yet, workers in Guatemala continued to be victims of serious violations of labour rights, including the right to strike. It was disturbing to see that the direct contact mission found that threats and use of coercion against workers were increasing considerably. The Government's promises to remedy anti-union practices were thus put in question. The fact that only one per cent of workers in Guatemala were organized was due to the climate of fear that prevailed in the country. Unionists risked losing their jobs and even their life. When a demonstration took place following the Government's approval of the free trade agreement with the United States, which had been concluded without consulting civil society, the armed police and soldiers surrounded the office of a trade union which took part in the demonstration. In May 2005, unknown perpetrators broke into the offices of several trade union organizations. Only information about the organizations was stolen, while valuable equipment was left untouched. Such incidents increased the fear among trade unionists, preventing them from carrying out their democratic trade union rights. The Committee of Experts still listed severe restrictions of freedom of association contrary to the Convention, including section 241 of the Labour Code, regarding the number of workers needed at a workplace to be allowed to call a strike. The same applied to the imposition of compulsory arbitration in cases of public sector strikes of services which are not essential according to the ILO. Despite many promises by the Government to amend the labour laws and the pledges made to the direct contact mission, few measures had been taken. No legal strikes took place in 2004 and the harassment of workers continued, both in the private and public sector. Only if the Labour Code and section 390 of the Penal Code were changed, would the Government's commitment be credible. Finally, the ILO should consider more serious measures to change the situation.

The Government representative reaffirmed the will to continue the efforts recognized by the Committee of Experts and the direct contact mission. His Government intended to continue the fight against corruption. The situation regarding trade unionist Rigoberto Dueñas was being examined by the penal justice system and was not being treated as a case of trade union persecution. The delegation at the present session of the Conference was testimony to the openness to dialogue of his Government since it also included a magistrate of the Supreme Court of Justice and various members of the Congress of the Republic.

The Worker members stated that, considering the elements contained in the Committee of Experts' report together with the situation prevailing in the country, it was unthinkable to conclude that progress had been made in this case. In their view, all the elements mentioned in the discussion showed that the problems persisted and to some extent even worsened.

The Worker members therefore asked that the Committee, in its conclusions, ask the Government to provide a detailed report containing precise answers to all the questions raised by the Committee of Experts regarding the application of Convention No. 87. The Government should also be asked to take, as a matter of urgency, all necessary measures to guarantee the exercise of freedom of association, adopting legislation and ensuring practice in accordance with the Convention.

While recognizing that the technical assistance demanded by the Government could be useful, the Worker members asked that the Government would be requested to provide, in its next report: (1) an assessment of the measures taken by the national tripartite committee, the Special Prosecutor's Office and the labour inspectorate; (2) statistical information indicating the number of registered trade unions and solidarist associations, as well as (3) information on the follow-up measures taken to the related conclusions of the Committee of Freedom of Association.

The Employer members concluded that, while the situation was improving, it was not yet perfect. The Committee of Experts should undertake a full assessment of the situation and the information requested by the Workers members would be useful for that purpose.

The Committee took note of the oral information provided by the Government representative and the discussion that followed. The Committee noted with concern that the pending problems related to acts of violence against trade unionists, excessive delays in criminal proceedings and the impunity which often prevailed, as well as restrictions in law or in practice to the establishment, functioning and free exercise of the activities of trade unions, as well as penal sanctions for such activities. The Committee took note of the comments presented to the Committee of Experts by various trade union organizations. The Committee also took note of the results of a direct contacts mission carried out in May 2004 and the commitments undertaken by the Government.

The Committee took note of the statements of the Government representative according to which Guatemala was supporting all the actions of the competent authorities in order to conclude the criminal investigations on acts of violence against trade unionists in a prompt and effective manner. The Committee took note that, according to the Government, certain questions raised by the Committee of Experts constituted problems of legal interpretation which could be overcome through the application of the legal rule which was most favourable to the workers. In particular, according to the Government, the problem relative to Decree No. 700-2003 on essential services had been overcome by virtue of subsequent laws.

The Committee underlined that trade union rights could only be exercised in a climate that is free from violence and threats of any kind and requested the Government to make all efforts to guarantee the exercise of trade union rights in a climate of full security for trade unionists and to improve the administrating of justice and avoid impunity. The Committee requested the Government to take the necessary measures to bring the legislation and practice into full conformity with the provisions of the Convention, and to communicate a complete report containing all pending questions, to the Committee of Experts this year. The Committee requested the Government to send concrete information on the number of inspections, the sanctions imposed in cases of violations of trade union rights in all sectors including the maquila, attaching statistics and numbers of trade unions and solidarist associations, as well as on the result of the criminal investigations of the Special Public Prosecutor's Office. The Committee expressed the hope that in the very near future it would be in a position to observe progress in relation to the pending problems and recalled that the technical assistance of the ILO was at the disposal of the Government.