Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

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

A Government representative indicated that, in view of the two natural disasters that had occurred recently in his country, the Minister of Labour and Social Welfare had not been able to attend the Conference, although the presence of two magistrates from the Supreme Court of Justice and the Chairperson of the Labour Commission of the Congress of the Republic bore witness to the commitment of the three authorities of the State on this subject.

He said that, following the conclusions of the Committee in 2009, the Government had repeatedly convened the Tripartite Commission on International Labour Matters to formulate the road map, but that, as unfortunately no agreement had been reached with the social partners, the Government had taken the decision to draw up the road map itself, with the technical assistance requested from the ILO. With regard to the comments of the Committee of Experts referring to the insufficient political will of the Government as the road map had been drawn up only a few days prior to the session of the Committee of Experts in 2009, he considered it necessary to make the following clarifications. The Government had requested ILO technical assistance on 2 July 2009. The Ministry of Labour had convened the social partners on five occasions, without achieving consensus. A technical assistance mission had taken place from 16 to 20 November 2009, at which time the Government had drawn up the road map on its own, although with the technical assistance of the ILO. The Committee of Experts stopped examining these facts, their role and the needs of the Office itself for the provision of the requested technical assistance. He then provided information on the action taken in relation to the cases before the Committee on Freedom of Association, the recommendations of the Committee of Experts and the strengthening of inter-institutional coordination mechanisms.

With regard to the cases before the Committee on Freedom of Association, he indicated that the International Affairs Unit had been strengthened with two further persons and a seminar had been held to raise awareness of the importance and the Government’s commitment with regard to international labour standards among those government institutions responsible for sending the replies to cases and reports. With reference to the recommendations of the Committee of Experts concerning legislative amendments, a proposal had been submitted to the ILO technical official as a follow-up to the technical assistance provided. In relation to the strengthening of the coordination mechanisms, he reported that the Multi-institutional Commission for Labour Relations in Guatemala had been reactivated to facilitate assistance to the investigation of crimes against trade unionists and to maintain the flow of institutional information.

Referring to the inadequacies of the General Labour Inspectorate, he noted that, with ILO assistance and support, a programme for its modernization had been initiated, 30 inspectors had been recruited and measures had been adopted to increase resources and recruit further inspectors. At present, three services were operating which had recuperated wage arrears and fines to the amount of $1.5 million.

With reference to the export processing sector, he indicated that an operation had been carried out by the labour inspectorate in 21 enterprises, in some of which violations had been reported and preventive measures outlined, while in others charges had been brought because inspectors had been refused entry. A total of 28 workers had been reinstated.

With regard to freedom of association, he reported that there were 356 registered trade union organizations, and that 70 unions and 45 collective labour accords had been registered in 2009, which were the highest figures for the past five years. With a view to promoting the right to organize, the Government had concluded agreements with educational institutions to train trade union leaders. It had been decided to establish a labour training school in the City of Guatemala and another in Quetzaltenango. He added that, in terms of the establishment and registration of unions, once the founders had complied with the legal requirements, they were recognized, their status approved, they were registered and the constituent act was published.

Between November 2009 and March 2010, the Government had established four tripartite social dialogue round tables, three of which were in the interior of the country. In May 2010 a “tripartite social dialogue meeting for decent work” had been held in the presence of the Director of the ILO Subregional Office. Guatemala was also the beneficiary of an ILO regional and subregional project on social dialogue.

With reference to the issue of impunity, he observed that impunity and generalized violence were matters of concern to the authorities and that there had been 6,000 murders during the course of 2009. With regard to the investigation of acts of violence against trade unionists, the Ministry of Labour was endeavouring to determine precisely whether or not the persons whose names appeared on complaints against the Government belonged to a union, the situation with regard to the legal action taken and the organization of which they were members. He added that in most reports it was found that the death was not due to reasons related to trade union activities. One of the greatest problems confronting the Government was that in many cases the complaints were put forward by de facto bodies, as a result of which the members were not recorded in the Labour Register of the Ministry of Labour, which therefore lacked essential information to determine whether the victims were members of unions.

He recalled that in October 2009 the new Supreme Court of Justice had become operational and had been informed, taking into account the respect for the independence of the powers of the State, of the need to improve the judicial system in order to address the issue of impunity and the crimes committed against unionized workers. The Supreme Court was taking action to accelerate procedures. In the case of the murder of Mr Pedro Zamora, the Office of the Public Prosecutor had appealed against the ruling of the first level court which had found the person charged innocent and the ruling of the second level court was awaited. The new Attorney-General had also requested certain measures to combat impunity.

With regard to legislative matters, he recalled that an intersectoral dialogue round table had been established to review the Civil Service Bill, which was still before Parliament, although the necessary consensus had not been reached.

He concluded that his country was implementing the road map, institutional strengthening and social dialogue. The ILO was providing continuous support for the action taken. Freedom of association and the right to organize were recognized and protected in law and practice. The establishment of trade unions was subject to compliance with the requirements set out in law and trade union and vocational training were being promoted. He added that he would provide information to the ILO in support of his statement.

The Worker members recalled the number of comments made by the Committee of Experts concerning Guatemala with regard to 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), the number of cases examined by the Committee on Freedom of Association, ten of which were currently under examination, and the five high-level and direct contacts missions carried out in the country since 2005. Despite a tripartite agreement signed at the conclusion of a high-level mission in 2008, the absence of improvements in the functioning of justice was obvious. The resignation of the Director of the International Commission against Impunity in Guatemala (Mr Castresana) was cause for concern as it tended to indicate that he felt unable to accomplish his mission, because the Government had broken its commitment to combat impunity by appointing an Attorney-General linked to drug trafficking. This resignation was a great blow to the workers and the people of the country in general, who yearned for the rule of law. The Committee of Experts had itself denounced the slowness and inefficiency of the justice system.

An ILO technical assistance mission carried out in November 2009, in order to implement the recommendations of the Conference Committee, had not produced any results in the absence of consensus among the social partners. The road map adopted had very little substance and everybody agreed that social dialogue was in great difficulty in the country.

The attacks by the Government were so effective that the violence against the trade union movement had led to the weakening and restriction of the trade union movement. Violence, murders, discrimination, attacks, harassment towards trade unionists and their families were the daily reality of the trade union movement in Guatemala. To the point that after 24 years of democracy, the rate of trade union representation had fallen to 0.5 per cent.

Despite the promises made at the highest level, impunity remained the rule and took place in a subtle manner. The Government withdrew the recognition from trade union organizations which had nevertheless, in certain cases, participated in the work of this Committee, and as a result, the violent acts committed against the trade unionists were prosecuted simply as ordinary crimes. Moreover, when the harassment and murders of trade unionists became at last the subject of a judicial decision, their classification as ordinary offences made them trivial. Thus, the action of the judiciary raised questions as long as the Government did not show any willingness to respect the various conclusions and recommendations formulated by the Committee of Experts, the various missions and this Committee. The report of the Committee of Experts could seem measured in the face of such a desperate situation, but the problems raised showed clearly the violations of fundamental rights and civil liberties of trade unionists who demanded from the Government to act. The only comfort for the workers remained the constant attention that the ILO paid to their situation.

The Employer members observed that this case was being discussed in the Committee since the 1990s. Although initially the comments of the Committee of Experts on legislative issues had covered a whole page of its report, today, that list was much shorter. The Government had therefore demonstrated its willingness to address the issues over the years and had received many types of technical assistance from the ILO, including the bipartite high-level mission which had visited the country the previous year with the participation of the Worker and Employer Vice-Chairpersons of this Committee.

The observation of the Committee of Experts could be reduced to two sets of issues: impunity and legislative issues concerning the free establishment and functioning of trade unions. The question of impunity was very complex. It affected society as a whole and was not only directed against trade unionists as such. During the bipartite high-level mission, the Employer members had observed that a basic problem faced by the Government was the lack of resources to be devoted to fighting impunity, since taxes were a small share of the gross domestic product. There were not enough police officers, prosecutors, investigators, judges, etc., and more was needed to strengthen the judicial system in particular.

Following the 2009 session of the International Labour Conference, the Government had put together a road map to address the legislative issues on the basis of tripartite consensus. However, at this stage, it was not possible to reach conclusions as to the appropriateness or effectiveness of this road map. Certain obstacles to the establishment and activities of trade unions persisted. The statistics provided on trade union membership, if they were confirmed, referred to an astoundingly small percentage of trade union representation in the country.

In conclusion, the most important issue at this stage was the problem of impunity. The Employer members considered that the Government’s opening statement had accorded very little attention to this problem and that more information should be provided by the Government of its plans to address this problem.

A Worker member of Guatemala said that Guatemala had been the subject of similar observations by the Conference Committee, the Committee of Experts and the Committee on Freedom of Association, some of which were even more serious than those made between 1980 and 1995, during the war. He stated that Guatemala was failing to comply with almost all of its obligations before the various supervisory bodies and high-level missions. The tripartite agreements made as a result of the high-level missions in 2008 and 2009 had not been effective, as due follow-up had not been carried out under the road map.

The main problems were that the Office of the Public Prosecutor had not increased institutional capacity to deal with the serious acts of violence that occurred every day against trade unionists. The Office of the Special Prosecutor for crimes against trade unionists, which had come into being through the Committee, had been weakened and reduced to a special unit, with insufficient resources and working methods that did not take account of relevant factors in examining instances of anti-union discrimination. There was a reluctance to invoke anti-union discrimination. With a weak structure in place, the State was incapable of identifying obvious cases of violence against trade unionists, or of finding and punishing the culprits.

As a result of weak labour inspection services – there were only 15 labour inspectors within the metropolitan area – employers could destroy trade unions and prevent new ones from being formed with complete impunity.

There was no coordination among institutions. Trade unions had requested the promotion of the Multi-institutional Commission’s conflict resolution body, but to no avail. There was corruption and a lack of independence within the labour courts and other institutions, and action was taken in a fragmentary and unconcerned manner. The election of new courts of justice had not changed the situation, as many candidates vetoed by the unions for their anti-union attitudes were now magistrates. Export processing was a particularly vulnerable sector: a company was currently engaged in mass dismissals and acts of intimidation against trade unionists and their advisers. Additional legislative reform must also be undertaken, in line with the comments of the Committee of Experts.

In concluding, he said that, although the Government of Guatemala claimed not to pursue an anti-union policy, neither had it demonstrated that it had a policy of respecting freedom of association, as this Committee had borne witness for more than ten years. He therefore requested the Committee to include the case in a special paragraph drawing attention to the severity of the case, the lack of progress in fulfilling commitments, and the climate of widespread violence that had led to murders of trade unionists, intimidation, and the weakening of the individual guarantees that underpinned the exercise of freedom of association.

An observer representing the International Trade Union Confederation (ITUC) stated that for 15 years the Committee had been bringing to the attention of the Government serious problems with regard to Convention No. 87. Guatemala had the second highest number of active complaints before the Committee on Freedom of Association in the world. From 2005 to 2010, five highlevel missions and innumerable technical assistance missions had taken place. He emphasized that the Committee of Experts and other supervisory bodies had indicated that the situation had deteriorated.

Among the most serious violations which had recently become more frequent than ever, were: the obstacles to the creation and registration of trade union organizations, which took more than a year; serious acts of anti-union violence which remained unpunished; criminalization and stigmatization of trade union activity, lack of independence and effectiveness of the labour justice system reflected in excessive delays in the pronouncement of judgements and the reinstatement of trade unionists which took more than eight years, and lack of collective bargaining and effective social dialogue.

He emphasized that the situation was so serious that a few days ago, Mr Castresana, Head of the International Commission against Impunity in Guatemala had resigned, stating that there was nothing more he could do for Guatemala, given the lack of will by the Government to eradicate impunity and the designation of an Attorney General who was described by Mr Castresana as belonging to groups linked to organized crime and drug trafficking.

Since 2007, 47 trade unionists of the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) had been assassinated without any progress by the justice system in the investigation; certain activists were seriously threatened like Lesbia Amezquita whose case had been examined by the Committee in 2009; the harassment against her had continued and even the Human Rights Ombudsperson had requested personal security measures which had not been provided. In March 2010, Luis Felipe Cho had been tortured and murdered after having received threats as a result of his trade union activities. Nevertheless, the Labour Ministry had indicated that Luis Felipe Cho was not a trade unionist. The speaker requested that the documents testifying the trade union registration of Luis Felipe Cho should appear in the records. He indicated that the programme for the protection of trade unionists was in the same state as the public prosecution service for crimes against trade unionists, to which the Government kept referring in each Conference although it had been abolished since 2005.

To conclude, he requested that the conclusions be included in a special paragraph with concrete proposals to resolve immediately the serious anti-union situation.

The Employer member of Guatemala regretted the lack of regional balance in the composition of the list of cases to be examined by the Committee, which affected the credibility of the supervisory system, especially when it was the result of reasons that had no place in the world of labour. In its observation, the Committee of Experts had referred to three basic questions: violence against trade union members; legislative issues; and problems that affected the export processing sector (maquilas), which in fact was the clothing and textile industry.

As for violence against trade union members, he reiterated the Employers’ commitment to investigate and identify responsibilities. In this respect some contacts have been made with the General Prosecutor of the Republic. Support had also been given to strengthening and professionalizing the labour inspection. However, it should be remembered that the climate of indiscriminate violence in the country had affected all the sectors of the population and that many of the acts of violence against trade union members could have had motivations other than their trade union activities. That should be taken into account, because it could not be confirmed that there existed a climate of anti-union violence in Guatemala. The existing low rate of trade union membership must not be attributed to those motives, but rather to the informality of the economy and the crisis in trade union leadership.

Some legislative aspects, such as the right to strike were not covered by Convention No. 87. He noted, however, that within the framework of the Tripartite Commission on International Labour Affairs, employers had been promoting changes in the system of strikes so that strikes could be declared more easily as long as they took into account the right of workers who did not support it to continue working. This initiative had not been supported by workers. As for the requirement of Guatemalan nationality in order to become a trade union leader, that was difficult to change because it would be necessary to change the Constitution.

The positive results of social dialogue, which allowed for a consensus on the need to reform the system of sanctions in cooperation with the ILO and pursuant to the guidelines agreed upon in the Tripartite Commission on International Labour Affairs, should be emphasized. It was hoped that the other pending legislative questions could be solved through social dialogue. As for the clothing and textile sector, he stressed that this sector represented 23 per cent of the country’s exports and 8 per cent of formal employment, and was one of the sectors that offered the best employment guarantees. He added that collective bargaining was carried out in that sector directly, without conflicts, between workers or their delegates and employers, resulting in greater benefits for workers and greater productivity for businesses. However, when there were conflicts, those were dealt with on two levels: first through voluntary mediation by the Centre for Alternative Resolution of Conflicts of VESTEX; and then through the general labour inspectorate.

The Government member of the Bolivarian Republic of Venezuela spoke on behalf of the Government members of the Committee Government members of the Group of Latin America and the Caribbean (GRULAC) countries. He observed that the Committee of Experts had noted that the Government had held consultations on the development of a road map but that consensus had not been reached between the workers’ and employers’ organizations. He nevertheless welcomed the fact that a road map had been developed in compliance with the Committee’s recommendations in June 2009. The GRULAC countries also drew attention to the technical assistance that the ILO had provided on the modernization of the country’s legislation and urged that the Government’s request be granted that all necessary assistance be made available rapidly and as an integrated package. The Government had shown its intention to collaborate by accepting the high-level mission in 2008, as well as other technical assistance missions.

The Government member of Belgium, speaking on behalf of Austria, Belgium, Germany and the Netherlands, declared that the Government of Guatemala had, since 1991, and up until 2010, been the subject of several observations of the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. A Tripartite National Commission for full implementation of the Convention as well as a road map had been established. The tripartite nature of that Commission must be preserved in order to guarantee the full participation of the social partners in that process. It was urgent that adequate measures be taken to punish those responsible for acts of violence committed against trade union members and that the results of the investigations carried out were made public. Through such steps, the Government would prove its political willingness to combat credibly violence committed against trade union members, to combat impunity and to adhere to the recommendations accepted by Guatemala within the framework of periodical review by the United Nations Human Rights Council. Creation by the Government of a committee of experts for nominating candidates for the Supreme Court could be favourably received, especially if the committee permitted the participation of civil society.

The Worker member of Colombia recalled that the present case had been examined on 14 occasions over the last 20 years for the same reasons. The Committee had adopted various recommendations that had been ignored by the Government. Consideration should be given to what measures the ILO could take in cases of persistent violence and harassment against trade unionists, impunity, legal and institutional obstacles to forming or joining trade unions, and lack of social dialogue. The measures taken so far by the ILO had not succeeded in improving the situation. What could be done in the face of a Government that, though professing goodwill, had not taken action to change the situation? The Employer and Worker members of the Committee should devise more effective measures. The situation could not be ignored and hoping that it would improve over the coming year was not sufficient. Deeper and more sincere political will was needed, based on democracy and effective social dialogue, to remove obstacles to the exercise of freedom of association. Such will did not exist in Guatemala.

The Government member of the United States, referring to a public submission that had been received in 2008, from the American Federation of Labour and Congress of Industrial Organizations (AFL-CIO) and six Guatemalan unions under the Labour Chapter of the United States–Dominican Republic–Central America Free Trade Agreement stated that her Government was reviewing many of the issues the Committee of Experts had been examining with regard to Guatemala’s application of the Convention. Effective enforcement of Guatemalan labour laws and the human and trade union rights of Guatemalan workers were a high priority for her Government. Her Government was disappointed by the lack of progress that had been made to date. The Government of Guatemala had acknowledged the serious challenges before it and had availed itself of ILO technical assistance on several occasions, including a number of high-level missions, the latest of which had led to the elaboration of a road map, prepared by the Government, that had outlined steps needed to be taken to address the observations of the Committee of Experts. In light of the ILO’s efforts to provide necessary assistance, it was especially troubling to note that the grave violence against trade unionists had not been stemmed, that the numerous shortcomings in the operation of the criminal justice system persisted and that the situation of impunity remained as serious as ever. There was a clear and continuing need to improve labour law enforcement to ensure that workers could establish organizations in full freedom, including in export processing zones, and that those organizations could plan and carry out their activities freely. She urged the Government to redouble its efforts, in close cooperation with the ILO and with the full involvement of the social partners, to bring about as soon as possible concrete and sustainable improvements with regard to all aspects of freedom of association and the right to organize in Guatemala.

The Worker member of Brazil drew attention to the long-unresolved legislative problems, which consisted of restrictions on the establishment of organizations, as half plus one of the number of workers at an enterprise was required; restriction of the right to freely elect union leaders, as they must be Guatemalan and work at the enterprise or in the same economic activity to be eligible for election; restriction of the free exercise of activities, given that a majority of workers were needed to declare a strike; the possibility of imposing compulsory arbitration in disputes in the public transport sector and fuel-related services; prohibition of solidarity strikes; and a bill requiring high percentages for the establishment of trade unions. Furthermore, official union registration had been delayed for up to a year and a half. The right of unions to join federations and confederations had also been obstructed. He highlighted in particular the situation of the Trade Union Confederation of Guatemala (UNSITRAGUA), which, though formed in 1985, had yet to be registered; the Government had recently, and with surprising rapidity, accepted the registration of a new federation with the same name, made up of four organizations of doubtful activity. Taking into account the background of violation of the Convention in various respects, a high-level mission in 2008 had approved a tripartite agreement to modernize legislation and bring it into line with the Convention. In addition, the Committee of Experts had taken note of the ongoing technical assistance in the country. Such measures, like the Government’s promises, had been repeated since the year 2000. The Committee, however, should not maintain the same attitude as it had for the last ten years.

The Employer member of Spain observed that the climate of increasing violence in Guatemala could be demonstrated by the deaths of more than 6,000 people, as had been indicated by the Government. The increase in drug trafficking was also a matter of concern. First, priority must therefore be given to ensuring a climate of stability and normality in all activities and to strengthening the fight against impunity. Second, it was important to identify and investigate whether acts of violence and crimes against trade unionists were a consequence of their union activities. Although some progress had been made with regard to constitutional protection (amparo), steps must be taken to expedite freedom of association proceedings and guarantee effective penalties. Third, the road map formulated by the Government was a positive step; it must be implemented as a priority in an incisive manner, in line with the conclusions of the two high-level missions. Fourth, it should be borne in mind that the issue involved the whole of Guatemalan society: not only did it require firm political will on the part of the authorities; but employers’ and trade union organizations must assume responsibility too. A constructive attitude, open to finding regulatory solutions and ready to work effectively against alleged acts of intimidation and violence, was key.

The Worker member of France stated that the gravity and the number of violations of trade union rights in Guatemala remained appalling, making it one of the most dangerous countries in the world for trade unionists. The types of crimes committed against both trade unionists and agricultural workers’ leaders stood out because of their cruelty and were allowed to happen, because they remained unpunished, and because trade unionists were seen as targets. Luis Felipe Cho had been tortured and brutally murdered after being threatened for carrying out trade union activities. His severely mutilated body was found on 6 March 2010. He was one of the six unionists from the real trade union movement, united in the MSICG, murdered since the beginning of 2010. He called upon the Government to bring the killers and instigators behind this murder to justice.

Referring to the conclusions this Committee made in 2009, he regretted that, since then, the situation had only degraded. The latest comments of the Committee of Experts were particularly severe when it concluded that the Government had failed to demonstrate sufficient political will to combat violence against trade union leaders and members and to combat impunity. The Committee of Experts also indicated that the conclusion of the Conference Committee concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendation of the ILO supervisory bodies, continued to be globally valid. Over the past 17 years, there had been technical missions and numerous reports from the Committee of Experts, recommendations from the Conference Committee and conclusions from the Committee on Freedom of Association. The latter had condemned the Government for letting the violence and impunity go on, and for refusing to cooperate with it. An international commission to combat impunity in Guatemala had been established. A road map had been drawn up last minute, but had not been implemented. The Government had refused to grant domestic workers the right to organize in trade unions. The Prosecution Service had not investigated crimes against trade union members, despite its commitment to do so. It was clear that, despite its declarations, the Government was unwilling to act to create a safer climate for trade unions, workers and peasants.

He expressed the hope that the Government would fully cooperate with its international partners and the ILO and was disappointed that no statement had been made by the European Union, which had been promoting and supporting human rights and democracy worldwide. He supported the request for a special paragraph on Guatemala in this year’s report and called on the ILO to give more publicity to the allegations made against the Government and its negative attitude.

The Government member of Panama supported the statement by GRULAC and recognized the Government’s efforts to apply the Convention and put into practice the Committee’s recommendations. Panama and Guatemala, as members of the Central American Integration System (SICA), recognized the importance of freedom of association as a basic human right, closely linked to freedom of expression, and the basis of democratic representation and governance. He therefore requested that all the requested assistance for effective application of the road map be provided to the Government.

The Worker member of Germany expressed his deep concern at the situation of trade unionists in Guatemala who continued to be exposed to harassment, physical violence and disappearances. He saw no improvement in this case: crimes committed against trade unionists had remained unpunished; impunity prevailed; labour laws continued to be violated and neglected; the registration of trade unions continued to be hindered; trade union activists were stigmatized and union members dismissed. Moreover, as an employer, the State itself had taken anti-union measures against its own employees, as was the case with the Gualpapa municipal service workers and workers of various ministries. The Guatemalan unions had repeatedly drawn the Committee’s attention to the many onerous anti-union practices that existed, including the blacklisting of union members and the requirement, when applying for a job, of indicating one’s membership in a union. The latter was found not only in the private sector but in state enterprises as well, although this clearly infringed upon the guarantees set out in the Constitution. He expressed profound dismay over the prevailing situation and called upon the government representatives of countries of the European Union (EU) to take a strong position with respect to workers’ rights in Central America; he urged that labour rights be enshrined in a special clause in the EU Association Agreement, together with an attendant mechanism to ensure compliance with those rights.

The Worker member of Spain said that Guatemala was a paradigm for the systematic violation of fundamental rights. Moreover, in addition to direct and extreme forms of anti-union violence (killings, kidnappings, rape, threats), other kinds of violence were perpetrated against freedom of association, such as the criminalization of trade union activities, the ineffective justice and labour inspection systems and the lack of protection against intimidation, discrimination and interference in trade union affairs or the refusal to recognize them. The purpose behind this was to destroy the independent trade union movement, as in the case of the MSICG which the Government had not accredited to the Conference. In addition to the other major problems facing Guatemala, such as the informal sector situation and the lack of equality between men and women, there was no social dialogue, as was evidenced by the adoption of a road map by the Government without consulting the social partners. The road map was adopted in November 2009, with most of the deadlines for adopting the measures falling on 31 December 2009 and some even before the adoption of the road map. Like every one of the Government’s other commitments to the supervisory bodies, the road map had not been respected. There was no political will to develop social dialogue. For all those reasons, he requested that the case be included in a special paragraph of the Committee’s report and urged that social dialogue be encouraged by compliance with the Convention, that the whole context of workers’ representation be revised so as to include representatives freely elected by the workers, and that the Government complied with the observations of the supervisory bodies.

The Worker member of the United States recalled that this case had been on the agenda of this Committee for the last 13 years and regretted that nearly all its conclusions and recommendations had been ignored by the Government. The Committee of Experts had made this point clear when it had referred to lack of political will. There were two types of ongoing impunity for which the Government was unmistakably responsible: the impunity in relation to the authors of violence committed against Guatemalan trade unionists; and the impunity in relation to the overall supervisory and standard-setting function of the ILO.

With regard to the first point, just in the last three years, there had been at least 40 unresolved cases of brutal assassination of trade unionists for having exercised their freedom of association and collective bargaining rights. This represented an increase as compared to the at least seven murders for the 2005–06 period. At least six killings had occurred in 2010, including the murder and dismemberment of Luis Felipe Cho and the murder of Pedro Antonio Garcia of the Municipal Workers of Malacatán in San Marcos. According to the 2009 Report on Human Rights of the United States State Department, despite some limited investigations by the Public Ministry, there had been absolutely no known progress in numerous cases of assassination of trade union leaders. The State Department had also reported that the suspect Valiente Garcia, arrested for the 2007 murder of Pedro Zamora, Puerto Quetzal Dock Workers Union General Secretary, had been acquitted and released, with a second suspect, Dremier Fuentes, remaining at large. In a meeting at the Guatemalan Embassy in Washington in 2009, the speaker indicated to have been informed that the Zamora assassination case had been satisfactorily resolved with the responsible parties investigated and pursued, following a complaint jointly filed by the Guatemalan trade union movement and the AFL-CIO pursuant to the Labour Chapter of the Dominican Republic–Central America–United States Free Trade Agreement. The 2009 ILO high-level mission had received evidence of “the general lack of independence of the judicial authorities and Government bodies” in relation to violent crimes committed against trade unionists. According to the 2010 ILO report on labour inspection in the Central American region, Guatemala had reduced its budgetary allocation for inspection. It had thereby further contributed to the impunity and had wilfully disregarded its commitment made in the Tripartite Commission following the conclusion of the 2008 ILO high-level mission.

The Government had also shown its contempt for the ILO supervisory bodies. According to the MSICG, a member of the Committee of Experts had attempted to meet with the Labour Ministry, the Supreme Court of Justice and the Prosecution Service of the Public Ministry, but had been ignored. In response to the concerns and findings of the Committee on Freedom of Association published in November 2009, the Government had completely evaded the Committee’s queries by stating that it had no knowledge of the existence of the complainant organization, MSICG, despite the fact that this organization consisted of ITUC affiliates, including the CGTG, CUSG and UNSITRAGUA. Accordingly, in March 2009, the Committee on Freedom of Association had expressed its concern at the Government’s dilatory responses in Case No. 2709, as well as its objections to the eligibility of the complainants. He therefore called for this case to be included in a special paragraph.

The Government representative stated that the main problems facing the country, as well as its society in general, were violence and impunity. Guatemala had requested assistance to combat impunity, which had resulted in the establishment of the International Commission against Impunity in Guatemala (CICIG) in 2007. The President of the CICIG had resigned just a few days earlier, after lodging complaints against the new Public Prosecutor. The President of the Republic had ordered that the complaints be investigated. However, the current situation had not affected the Government’s commitment to the CICIG, whose mandate continued to be in force and necessary and had to be strengthened.

With regard to the comment of the Worker members concerning the lack of substance of the road map, he noted that it had been drawn up with the assistance of the ILO and regretted that there had been no consensus in the Tripartite Committee. As for work in maquilas, the proposed amendments to the Labour Code contained provisions in this respect. The Government had repeated its request for technical assistance in, at least, reviewing the road map, as well as the issues of social dialogue, legislation and trade union training, and hoped that it could be rapidly made available as an integrated package and directed to the social partners and the Government. With respect to the labour training school, a project for which the Government had attempted to find sources of assistance, the Government representative signalled the inclusion of a component aimed at strengthening the capacity of trade unions to submit proposals. Regarding the judicial system, eight additional courts were operating, a new Appeals Chamber was due to be established and the recently revised Code of Penal Procedure was now in force and was speeding up procedures with the introduction of public hearings. The Legislature had committed itself to increasing the budget of the judicial authorities.

With regard to the murder of Pedro Zamora, the Public Prosecutor’s Office had appealed against the sentence handed down in the first instance, which had declared the person concerned innocent, and was awaiting the outcome. The next report of the Government would contain information on other pending issues.

The Worker members, after having heard the explanations given by the Government representative, asked specifically that the Committee’s conclusions appear in a special paragraph of its report. Including the conclusions in a special paragraph should serve to remind the Government, and the international community and the social partners as well, just how important was the full and complete exercise of freedom of association in strengthening democracy, notably in Guatemala. The Committee’s conclusions should mention the following points: (1) the promulgation of a law guaranteeing all workers, including workers in the public sector, the effective exercise of freedom of association in accordance with Convention No. 87; (2) the inclusion within the law on the protection of rights (ley de amparo) of a recourse along the lines of that provided for in article 25 of the American Convention on Human Rights, of which Guatemala was a signatory; (3) the amendment of the national legislation so that the observations of the ILO supervisory bodies could be invoked as binding provisions; (4) the immediate reinstatement of all trade unionists who had been suspended by the country’s state institutions; (5) the strengthening of social dialogue by means of a redefinition of all the workers’ representative institutions, and guaranteed access to those institutions for all freely elected representatives of all workers’ organizations in the country, in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); (6) the registration of UNSITRAGUA, which like other trade unions has been seeking registration for over a year; (7) an increase in the financial resources of the labour inspectorate so that it could monitor effective compliance with the country’s labour legislation; and (8) the proper functioning of the machinery for protecting trade unionists and defenders of freedom of association and other human rights.

The Employer members stated that this case was important. However, they disagreed with the Worker members that the case merited a special paragraph in the Committee’s report. The Government, over many years, had taken advantage of technical assistance, and had made improvements to the labour legislation. However, two key issues remained: impunity and legislative gaps concerning interference with the activities of workers’ organizations which prevented them from operating in full freedom. Technical assistance had been provided on these two subjects, including visits from the Worker and Employer Vice-Chairpersons of this Committee, although nothing seemed to have worked. Impunity continued to be a problem, which affected all members of society, including trade unions. They emphasized the need to think of solutions beyond the standard tools used by the ILO to address the issues. The Employer members proposed sending an important and recognized personality to Guatemala, with high-level ILO support, to study the situation and make recommendations regarding impunity.

The Worker members emphasized that this was a very serious case and that the conclusions adopted were well drafted. It was nonetheless difficult to understand why the Employer members refused to include this case in a special paragraph of the Committee’s report. Economic interests should not prevail over fundamental social rights. The Worker members stated that they had considered not accepting these conclusions. However, as they were aware of the danger this would represent for the ILO’s supervisory system, the conclusions had been adopted even though they were not included in a special paragraph.

Conclusions

The Committee noted the Government representative’s statement and the discussion that followed, as well as the numerous cases examined by the Committee on Freedom of Association.

The Committee noted that the Committee of Experts continued to raise with concern the following issues: numerous serious acts of violence, including murders and threats against trade union members; the stigmatization of trade unions; and legislative provisions and practices that were not in conformity with the rights set out in the Convention. The Committee of Experts had also noted the ineffectiveness of criminal procedures in relation to acts of violence, excessive delays in the judicial procedures and the lack of independence of the judicial authorities which was giving rise to a serious situation of impunity.

The Committee noted the indication by the Government representative that the situation of violence and impunity was generalized and did not exclusively affect the trade union movement. The Government had requested the support of the United Nations to combat impunity and the International Commission against Impunity in Guatemala (CICIG) had been established for that purpose. The Government had requested reports to determine whether or not the murders of trade unionists referred to were due to reasons related to trade union activities. The Government had on many occasions requested ILO technical assistance in relation to all of the problems raised, including violence, impunity and the legislative changes requested, as well as the drawing up of the road map. The Government representative stated that tripartite social dialogue had been taking place in the National Tripartite Commission and that four tripartite dialogue round tables had been created at the regional level. He indicated that, following the latest ILO high-level mission, inter-institutional coordination mechanisms had been strengthened. In addition, action had been undertaken for the reinstatement of workers in export processing zones. Training activities had been carried out and the decision had been taken to establish two labour training schools. He stated that, although measures had been taken to reinforce the labour inspection services and the unit in the ministry responsible for relations with the ILO, further technical assistance from the ILO was needed.

The Committee noted that this was an important case that had been discussed for many years and that the Government had received numerous technical assistance missions with a view to bringing the law and practice into conformity with the Convention.

The Committee noted with deep concern that the situation of violence and impunity appeared to have worsened and recalled the importance of guaranteeing on an urgent basis that workers were able to carry out their trade union activities in a climate free from fear, threats and violence. It noted further with concern that the Commissioner of the CICIG resigned on 7 June 2010. The Committee urged the Government to take the necessary measures to ensure the effective operation of schemes for the protection of trade unionists and defenders of freedom of association and other human rights.

The Committee noted with concern that the Government had not shown sufficient political will to take action to combat violence against trade union leaders and members and to combat impunity. The Committee emphasized the need to make substantial progress in sentencing in relation to acts of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee requested the Government to intensify its efforts to bring an end to impunity, including by considerably increasing the budgetary resources allocated to the judiciary, the prosecutors, the police and the labour inspectorate.

Also observing with concern the generalized climate of violence, the Committee recalled that freedom of association could not be exercised in a climate where personal safety and basic civil liberties were not guaranteed. The Committee urged the Government to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunals for protection against acts that were in violation of fundamental rights.

The Committee requested the Government to take measures to strengthen social dialogue, redefine the representation bodies and guarantee access for workers’ representatives that have been freely elected by the organizations existing in the country, in accordance with the comments of the supervisory bodies. In this regard, the Committee requested the Government to clarify the situation of the Trade Union Confederation of Guatemala (UNSITRAGUA) without delay, with ILO assistance.

The Committee considered that innovative solutions needed to be examined with a view to addressing as a priority the issue of impunity and the pending legislative questions. The Committee requested the Government to accept the possibility of the visit of an important international public figure, accompanied by the ILO at a high level, to examine these matters and make recommendations.

The Committee requested the Government to provide a detailed report to the Committee of Experts this year with information on tangible progress on all the above matters and expressed the firm hope that it would be in a position to note substantial improvements in the application of the Convention next year.

The Worker members emphasized that this was a very serious case and that the conclusions adopted were well drafted. It was nonetheless difficult to understand why the Employer members refused to include this case in a special paragraph of the Committee’s report. Economic interests should not prevail over fundamental social rights. The Worker members stated that they had considered not accepting these conclusions. However, as they were aware of the danger this would represent for the ILO’s supervisory system, the conclusions had been adopted even though they were not included in a special paragraph.