Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the Conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in June 2011 and the 13 cases before the Committee on Freedom of Association (Cases Nos 2203, 2361, 2445, 2609, 2673, 2708, 2709, 2768, 2811, 2840, 2859, 2869 and 2872). The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Union Unity of Guatemala (CUSG) (29 August 2011), and the comments of the Indigenous and Rural Workers’ Trade Union Movement of Guatemala for the Defence of Workers’ Rights(MSICG) (30 August 2011). The Committee also notes the communication of the International Trade Union Confederation (ITUC), dated 4 August 2011. The Committee requests the Government to submit the matters raised by these organizations to the National Tripartite Commission and to the other trade union confederations and to provide information in this respect, particularly on the decisions that are taken. The Committee notes the report of the mission requested by the Committee on the Application of Standards in June 2010, involving the visit of an important and internationally recognized personality with high-level ILO support to examine outstanding issues and make recommendations, which took place from 9 to 14 May 2011.

Acts of violence against trade unionists and situation of impunity

The Committee recalls that for several years it has been noting in its observations serious acts of violence against trade unionists which have gone unpunished and has requested the Government to provide information on developments in this regard.

The Committee notes that in its comments the ITUC, in the same way as the national trade union confederations, continue to highlight serious acts of violence against trade union leaders and members in recent years, including in 2011, and describe a climate of fear and intimidation with a view to undermining existing trade unions and preventing the establishment of new ones. The organizations also emphasized the deficiencies in labour inspection and the crisis in the judicial system. The Committee previously expressed the hope that, in the context of the tripartite agreement concluded during the high-level mission of 2009, all the matters raised with the ILO by national and international federations would be examined and addressed in a tripartite context by the Government and the social partners within the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommission and the Mechanism for Rapid Intervention in Cases.

The Committee has been noting in recent years the occurrence of numerous acts of violence against trade union leaders and members, ranging from murders, death threats and acts of intimidation to abductions, torture and armed assault using firearms or knives. There have also been cases of unauthorized entry into the homes of trade unionists and trade union premises. According to the trade unions, in certain cases the State has not provided the security measures requested by those under threat and the Office of the Public Prosecutor is not investigating all of the cases indicated, as some complaints have not even been entered into its database. The issue has also been raised of cases of obstacles or administrative hurdles to the establishment or operation of trade unions, and of unions being destroyed when they are in the process of being established. Over 20,000 workers in the public sector have no employment relationship, but instead a civil contract for professional services, and therefore are without trade union rights. Furthermore, according to the trade unions, trade union activity is being criminalized, with penal action being taken against trade unionists for engaging in peaceful demonstrations, and attacks are made on trade unions in anti-union publications and through smear campaigns. They add that the authorities have promoted workers’ organizations under their control in parallel to those already existing, and they provide the representatives who participate in the Tripartite Commission, even though they have little claim to being representative. With regard to legal action, they emphasize that the slowness of proceedings and the long delays continue to be a problem. Finally, they indicate that the anti-union climate is reflected in the unionization rate (2.2 per cent of the economically active population, of which the public sector accounts for 87.5 per cent).

The Committee notes that the Committee on Freedom of Association has noted with concern that the allegations presented in the cases before it are extremely serious and include numerous murders of trade union leaders and members, one disappearance, acts of violence (sometimes also against the families of trade union members), threats, physical harassment, intimidation, the rape of a family member of a trade unionist, obstacles to granting legal personality to unions, the dissolution of a union, criminal proceedings for carrying out trade union activities, and major institutional failings with regard to labour inspection and the functioning of the judicial authorities, which have created a situation of impunity in labour matters (for example, excessive delays, lack of independence, failure to comply with reinstatement orders issued by the courts) and in criminal matters (for example, Case No. 2445 and two more recent Cases Nos 2609 and 2859) relating to numerous acts of anti-union violence presented to the Committee on Freedom of Association.

The Committee wishes to refer to the conclusions of the high-level mission which visited Guatemala from 9 to 14 May 2011, which read as follows:

The mission wishes to recall that the problems of violence referred to by the CEACR are the following:

• – Alleged murders of trade union leaders and members over the past five years:
• 2007: 12;
• 2008: 12;
• 2009: 16;
• 2010: 10; and
• 2011: two up to the month of May (a few days after the mission, a trade union leader of the SITRABI was murdered).
• – Death threats, abductions, raids, etc., alleged over the past four years:
• 2008: eight death threats, two attacks against the homes of trade union leaders, a raid against trade union premises and a raid against the home of a trade union leader, and two attempted murders of trade union leaders;
• 2009: 17 death threats against trade union leaders and executive committees, eight cases of physical assault against trade union leaders and members; an attack against trade union premises and an attack against the home of a trade union leader; and a temporary abduction of a trade union leader; and
• 2010: four death threats, an attempted murder of a trade union leader, an abduction, involving torture and the rape of a trade union leader, an attack against trade union premises, an attack against the home of a trade union leader, and physical assault against a trade union leader.

The mission emphasized to all those with whom it spoke the gravity of the allegations and the figures referred to above, and recalled during its meetings the relevant principles of the supervisory bodies, and particularly that trade union rights can only be exercised in a climate that is free from violence, and it sought solutions to the matters raised by the Committee. The mission also emphasized that the killing or serious injury of trade union leaders and trade unionists requires the institution of independent and expeditious judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events.

The mission observed that the situation of violence is generalized, affects trade unionists, employers and other categories and results in around 10,000 violent murders a year (according to data provided by the Presidential Coordinating Commission for Executive Policy in the Field of Human Rights (COPREDEH)) in a country of 11,237,196 inhabitants (according to data provided by the Ministry of Labour). The murder figures for trade union leaders over the past five years show that they are a particularly vulnerable category, although at the present time the most affected sector is that of bus drivers and passengers (on the last day of its work, the mission was able to observe this directly by witnessing an attack with firearms on a bus in which five persons died). The mission was informed by various sources that the main perpetrators of acts of violence are related to common crime, organized crime and, recently, drug trafficking, a crime that has been spreading particularly rapidly in recent years in Guatemala and other Central American countries. The mission was able to observe that a large number of people in the country carry weapons.

The trade union confederations and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) emphasized the weakness of the security services and the judicial system, their concern at the level of violence and their desire to contribute to the eradication of violence and the restoration of the rule of law.

In this context, at the beginning of its work, the mission found that the authorities were only in a position to provide information on investigations concerning a small number of the trade union leaders and members who had been murdered. In various meetings, including those held with certain magistrates and other authorities, the mission was informed that certain murders might be of an anti union nature. The mission observed that only once investigations have been conducted and those responsible for carrying out, planning and instigating the acts of violence against trade union leaders and members could their anti-union nature be ascertained, and that for that reason it is urgent to conduct expeditious and exhaustive investigations in all cases. The lack of full and up-to-date information on developments in the investigations concerning trade unionists was a matter of concern for the mission, as was the lack of coordination between State services following up these crimes.

For this purpose, the Tripartite Commission on Labour Affairs called for the restoration of the specialized prosecution service for crimes against trade unionists and asked the mission to express its concern to the Office of the Attorney-General in relation to this situation. Sharing these concerns, the mission requested the Public Prosecutor to establish a special prosecution service responsible for investigating these crimes and for an acceleration of the investigations of the 52 murders denounced. The Public Prosecutor appointed a few months ago, with a background in the field of human rights, welcomed these proposals, although the proposals for the restoration of the specialized prosecution service was subject to the outcome of the budget discussions in the Congress. The mission also called on the International Commission against Impunity in Guatemala (CICIG) to collaborate with the Office of the Public Prosecutor to investigate and shed light on these cases. The mission is pleased to note that it received an affirmative response from both parties and the undertaking to carry out these investigations.

The mission indicated to the authorities the importance that these investigations were undertaken taking duly into account the alleged anti-union nature of the cases, as in recent years there has been a certain tendency in investigations to give priority to other motives, and particularly those based “passion”. The Public Prosecutor expressed great interest in the possibility of concluding a cooperation agreement with the ILO, which would include activities to provide training to prosecutors on typical contexts of anti-union violence and the factors which give rise to such violence (the Public Prosecutor will soon contact the ILO for this purpose). The mission also suggested that representatives of the Office of the Attorney-General should participate regularly in the meetings of the Tripartite Commission on Labour Affairs with a view to providing information on progress in the investigation of cases of murders of trade union leaders and members. The Office of the Attorney General and the Tripartite Commission on Labour Affairs welcomed the proposal.

The mission noted the urgent call by society, including employers’ and workers’ organizations, to address more decisively the impunity and corruption existing in the country and considers that the authorities need to devote much higher levels of resources and take effective measures to eradicate the corruption that permeates the administration of justice. At present, the impunity rate is 98 per cent, according to official sources. The CACIF and the trade unions agree on the need for criminal and labour court procedures concerning anti-union practices to be expeditious and effective.

The Committee also notes with deep concern that, according to the ITUC, since the visit by the mission, four more trade union leaders were murdered between July and September 2011.

The Committee notes the conclusions of the Conference Committee in 2011, noting that this is an important case that has been under discussion for many years and that the Government has received numerous technical assistance missions on the various pending issues, and observing with deep concern the persistent climate of violence in the country and the growing degree of impunity, and that the figure for trade union leaders and members murdered in recent years shows that they are a particularly vulnerable group. The Conference Committee emphasized the need for further steps to strengthen the judicial authorities, the police and the labour inspection services, and to provide them with greater human and financial resources. The Conference Committee drew attention to the need for a reform with a view to reinforcing the rule of law and the institutions responsible for justice, as well as their independence. The Conference Committee expressed its serious concern at the situation and noted the lack of clear and effective political will of the Government. The Conference Committee considered that all measures needed to be taken on an urgent basis and in tripartite consultation to address the issues of violence and impunity in full coordination with the State authorities concerned and with ILO technical assistance.

The Committee notes the Government’s indication in its report, with reference to the pending matters relating to the application of the Convention, that the Tripartite Commission on International Labour Affairs has held various meetings in which ideas have been exchanged and agreements made between representatives of the three sectors of which the Commission is composed. The subjects addressed include in particular the serious acts of violence, the deficiencies of the labour inspectorate and the crisis of the judicial system. The Government adds that the possibility was discussed of providing training to the staff of the Office of the Attorney-General on labour law so as to ensure a better follow-up of cases of crimes against trade unionists, but that with regard to the recruitment of 100 new labour inspectors, it is still necessary for the Ministry of Labour to meet the President of the Republic for the necessary budgetary allocations. The Government indicates that emphasis has also been placed on the reactivation of the Subcommissions on Labour, Legal Reform, Employment Generation Policies, Mechanisms for Rapid Intervention in Cases, the Tripartite Council of the General Labour Inspectorate with a view to following up the various subjects covered by each of the Subcommissions.

With regard to the protection of trade unionists who have received death threats, the Government indicates that, as observed by the high-level mission in 2011, the situation of violence is generalized and that it affects trade unionists, employers and other categories. The figures for the murders of trade union leaders over the past five years demonstrate that they are a particularly vulnerable category, even though at the current time the most affected sector is bus drivers and passengers. The mission was informed that the main sources of violence include common delinquency, organized crime and, recently, drug trafficking, a crime which has been expanding particularly rapidly in recent years, especially in Guatemala and other Central American countries. As a result, the provision of individual protection to trade union leaders is becoming a difficult task both from the viewpoint of financial and logistical resources. Nevertheless, the Government wishes to show its concern for the physical protection of trade union leaders. This is carried out through the Department for the Assessment of Assaults on Human Rights Defenders, composed of the Office of the Attorney-General, the Ministry of Government, COPREDE, the Office of the High Commissioner of the United Nations, the General Directorate of Civil Intelligence (DIGICI), the Investigation Unit for Human Rights Defenders and the Unit for the Protection of Personnel of the Ministry of Government.

With reference to the issue of the slowness and ineffectiveness of the judicial system and the need to shed light on murders and crimes committed against trade unionists, the Government indicates that the Supreme Court of Justice has reiterated the undertaking of the judicial authorities to comply with their constitutional mandate to impart justice with independence, guaranteeing the access of the population to an effective judicial system.

With regard to the Committee’s request for the murders of trade unionists to be investigated, the Government indicates that, giving effect to the requests of the ILO high-level technical mission, on 23 May 2011, the Tripartite Commission on International Labour Affairs held a meeting in the Office of the Attorney-General with the Prosecutor General and the Adviser to the Attorney-General, following, which, on 26 May 2011, Decision No. 49-2011 of the Office of the Public Prosecutor of the Office of the Attorney-General was issued reactivating the Special Investigation Unit into Crimes against Trade Unionists, which will be composed of an investigator responsible for the Unit, three deputy investigators and one official. The Office of the Prosecutor General referred to the conclusion of an agreement with the ILO for the training of prosecutors. The Government adds that on 27 July a hearing was requested with the Prosecutor General to finalize the agreement for ILO technical assistance, establish a mechanism for the participation of the Office of the Attorney-General in the meetings of the Tripartite Commission, seek information on the establishment of the Support and Follow-up Commission for the Investigating Unit into Crimes against Trade Unionists and request a contact point for the exchange of information on the various cases of violence against trade unionists. This hearing is still awaited.

With regard to the criminal investigations into crimes against trade unionists and the situation of impunity, the Government indicates that the Supreme Court of Justice addressed the matter of the alarming increase in murders and crimes against trade unionists and the lack of progress in the investigations of crimes committed against them, and that the Supreme Court of Justice took measures, within the field of its competence, in response to the generalized violence which not only affects trade unions, but the whole of the country. These measures are: (1) the Supreme Court of Justice, through its Penal Chamber, has taken measures relating to the access to justice of victims, implementing coordination measures between the judicial authorities and a series of support services for victims, through a training programme including municipal victim assistance centres, as well as trained judicial facilitators supported by the judicial authorities; (2) the creation of courts to try high-risk crimes, as magistrates and investigators are particularly vulnerable to threats and other forms of coercion with a view to influencing them, and the ordinary criminal courts are inadequate to confront the situation: high-impact criminal courts have therefore been established to try high risk crimes as the best means of responding to the situation of generalized violence in the country and accordingly combating impunity; and (3) with regard to crimes against trade unionists, it is envisaged to entrust one of the existing criminal courts with the specific competence to try crimes against trade unions, with the magistrates and ancillary staff being trained and their awareness raised concerning the function of trade union activity in the country. Similarly, since November 2010, six judicial bodies have been in operation that are specialized in murders and violence against women, including violence occurring at the workplace.

The Committee notes all of the measures, initiatives and ideas of the authorities and particularly welcomes the reactivation of the former Special Investigation Unit into Crimes against Trade Unionists and its strengthening, as well as the will of the Government to develop with the Public Prosecutor a coordination mechanism between the Tripartite Commission and the Office of the Public Prosecutor and that the Supreme Court of Justice, including entrusting one court with specific competence to try crimes against trade unionists, with the provision of training on the motives for anti-union action, in accordance with ILO recommendations, so as to draw a distinction with other situations deriving from the generalized situation of violence affecting the country. The Committee notes the other measures adopted by the Government for institutional coordination to combat anti-union violence, as well as the agreement to establish a commission composed of the Office of the Attorney-General and trade unions to follow-up criminal cases relating to trade unionists.

The Committee is nevertheless bound to emphasize that in recent years the action by the Government to combat anti-union violence has not up to now resulted in decisive and effective improvements. Indeed, the Committee notes, for example, that the ITUC has reported four more murders of trade union leaders since the ILO mission in May 2011. Moreover, the action taken by the Government has not resulted in the compilation of information to be provided to the Committee concerning all of the criminal investigations into the 56 murders of trade union leaders committed since 2007 (information has only been provided on a limited number of cases), as well as the numerous cases of death threats and acts of intimidation. The Committee notes with deep concern the gravity of the situation of anti-union violence which has persisted even following successive ILO technical assistance missions and the emphasis placed by the high-level mission on the weakness of the security services and the judiciary, which moreover is permeated by corruption, and an impunity rate of 98 per cent for which there are no prosecutions or effective convictions. The Committee considers that the current penal situation once again confirms the conclusion of the Conference Committee concerning the lack of clear and effective political will of the Government.

The Committee once again draws the Government’s attention to the principle that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessively slow proceedings and the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity and which is extremely damaging to the exercise of trade union rights and incompatible with the requirements of the Convention.

The Committee once again deplores the murders of trade unionists and other acts of anti-union violence and once again firmly requests the Government to: (1) ensure the protection of trade unionists under threat of death; (2) convey to the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate murders and crimes committed against trade unionists so as to punish the perpetrators; (3) ensure the allocation of sufficient resources to these objectives with the consequent increase in human and material resources, and ensure effective coordination between the various state bodies which may be called upon to intervene in the judicial system, and to provide training for investigators; and (4) to give absolute priority to these matters in Government policy. The Committee invites the Government to undertake a programme of technical cooperation with the ILO with a view to resolving the serious problem of anti-union violence and criminal impunity in relation to crimes against trade unionists.

The Committee expresses the firm hope that the Government will take all the necessary measures to guarantee full respect for the human rights of trade unionists and that it will continue to apply the protection machinery to all trade unionists who so request. The Committee also requests the Government to take the necessary steps to ensure that appropriate investigations are conducted by the Office of the Public Prosecutor and the judicial authorities to identify those responsible for acts of violence against trade union leaders and members, and to prosecute and punish them in accordance with the law. The Committee requests the Government to report on all developments in this regard and deplores the fact that up to now the Government has not indicated the stage reached by the investigations into the majority of murder cases. Observing that the Government’s information only exceptionally refers to cases in which those responsible have been identified and punished, the Committee expresses concern in this respect and insists that the Government should reinforce the criminal justice system considerably.

Finally, the Committee emphasizes the importance of the Government giving effect to the recommendations of the Committee on the Application of Standards, which were reproduced above.

Legislative problems

The Committee recalls that for several years it has been commenting on the following provisions, which raise problems of consistency with the Convention:

• – restrictions on the establishment of organizations (the need, under section 215(c) of the Labour Code, to have 50 per cent plus one of those working in the occupation to establish industry trade unions) and delays in the registration of trade unions or the refusal to register them;
• – restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to work in the enterprise or economic activity in order to be elected as trade union leaders, under sections 220 and 223 of the Labour Code);
• – restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are not declared by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); and labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);
• – the Civil Service Bill; in its previous observation the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and
• – the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or employment benefits other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with the jurisprudence, these workers enjoy the right to organize. Nevertheless, this jurisprudence has not been given effect in national practice, according to technical assistance reports and the comments of the MSICG.

With regard to these matters, the Committee noted previously that, at the proposal of a high-level mission (2008), the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, and that this agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and breach of due process, failure to enforce the law and sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the Committee. The Committee observed in 2010 that there had been various ILO technical assistance missions.

The Committee notes the Government’s indication in its report that the authorities decided, after holding meetings with the trade unions in the public sector, to re-examine in the Congress of the Republic the reform of the Civil Service Act.

The Committee notes the comments of the CACIF challenging its competence in relation to strikes and its principles. The Committee refers to the explanations provided in the 2011 General Survey on fundamental labour rights.

The Committee notes the conclusions of the 2011 high-level mission, which are as follows:

The mission regrets to note that no progress has been achieved since the previous year in relation to the legislative reforms requested by the CEACR and that the Tripartite Commission on Labour Affairs has not submitted any draft legislation to Congress. The mission reiterated the importance of bringing the legislation into full conformity with the Conventions on freedom of association. The mission forwarded the comments of the CEACR to the Labour Commission of the Congress. The Labour Commission of the Congress expressed the wish that the Tripartite Commission on Labour Affairs should enter into contact with it regularly to address these matters and the Tripartite Commission concerned. The mission suggested the possibility to the Labour Commission of the Congress to conclude an agreement with the ILO in relation to training on international labour standards and to improve their application; this proposal was received with great interest and it was indicated that the matter would be submitted in the near future to the competent authorities of the Congress.

With regard to the situation of the many workers in the public sector engaged under contracts under items 029 and others of the budget, the mission noted that, according to the Supreme Court of Justice, the case law recognizes the right of these workers to organize. The mission also noted that in practice these workers join organizations and in certain State institutions represent 70 per cent of the staff. The mission suggested that the authorities, by means of a circular or a resolution, should remove any doubt on the right to organize of workers engaged under contracts under item 029 of the budget. However, the Minister of Labour expressed reservations for economic and legal reasons.

The Committee notes that the Government has recently established an inter institutional commission for the preparation of a Bill respecting the outstanding legislative matters, but emphasizes once again that nothing in the Government’s report indicates that progress has been achieved in legislative matters. The trade union confederations also indicate that there has been no progress.

The Committee notes that, in its conclusions in 2011, the Conference Committee expressed the hope that the Government would be in a position to report substantial progress in the very near future. The Committee regrets to note that, despite requesting improvements in the legislation for many years, there has not been significant progress in the legislative reforms requested and it considers that much more effort will need to be made. The Committee firmly hopes that, with ILO technical assistance, the Government will be in a position to provide information in its next report on positive developments in relation to the various matters referred to and that tangible progress will be achieved in the near future.

Registration of trade unions. The Committee wishes to refer to the conclusions of the 2011 high-level mission concerning the alleged obstacles to the registration of trade unions, which read as follows:

The Committee of Experts received allegations concerning the obstacles to the registration of 20 trade unions. The workers’ sector of the Tripartite Commission on Labour Affairs indicated that 200 applications had been awaiting registration for some time and continued to be pending. The authorities denied this figure and explained that the delay with certain files was related to the negligence of one official for a year and that another person is now responsible for registrations. According to the authorities, 84 applications for registration were lodged in 2011, of which 34 have already been registered, four are in the process of registration and 11 more were signed by the Minister during the week of the mission’s visit. The mission emphasized to the Government the need for a rapid solution concerning the registration of the remaining organizations. The mission also suggested the establishment of a proactive registration procedure enabling trade unions with the authorization of their assembly to correct directly in the Ministry legal problems arising during the registration process. According to the General Directorate of Labour, this already happens in practice.

The Committee however observes that in their comments the trade union organizations indicate that in practice there exist significant obstacles to the registration of trade unions and it therefore invites the Government to discuss this matter in the Tripartite Commission with a view to adopting an approach that allows the rapid resolution with those establishing trade unions of any substantive and formal problems which may arise and facilitates in so far as possible the registration of trade unions.

Other matters

The maquila sector. For years, the Committee has been noting the comments of trade unions concerning serious problems in the application of the Convention in relation to trade union rights in the maquilas.

The Committee previously noted the comments of the ITUC that it is impossible to exercise the right to organize in export processing zones due to the determined opposition of employers. In the 200 maquilas that exist, unions have only been established in three of them and the labour authorities are incapable of exercising control over breaches of the law or the failure to give effect to it in this sector. According to the MSICG, the fact that it is impossible to establish organizations in maquilas is a result of anti-union practices.

The Committee notes the Government’s indication in its latest report that there are seven unions active in maquila and textile enterprises, and a collective contract approved for the period 2008–10.

According to the Government, the total number of denunciations in relation to freedom of association and the protection of the right to organize in the maquila and other sectors covered by the General Labour Inspectorate in 2009 was 30, most of which are under examination; the number of denunciations relating to freedom of association examined by the General Labour Inspectorate in 2010 was seven, all of which are under examination. The Committee concludes that the general procedures for administrative investigations are too slow and ineffective. The trade union confederations indicate that the total number of denunciations for violations of trade union rights is 129 in 2011.

The Government indicates in relation to trade union rights in maquilas that on 24 November 2010, the Inter-institutional Framework Agreement for the Exchange of Information between the Ministry of the Economy and the Ministry of Labour and Welfare was signed within the framework of Decree No. 29-89 of the Congress of the Republic of Guatemala, with the following outcomes: (1) the General Labour Inspectorate has a unified register which forms part of the comprehensive labour system of all entities which benefit from the advantages granted to the enterprises concerned (particularly in relation to taxation) under Decree No. 29-89 of the Congress of the Republic of Guatemala, the Act to promote and develop export activities and the maquila; and (2) the Directorate of Commercial Services and Investment of the Ministry of the Economy has a register of cases of entities covered by denunciations to the General Labour Inspectorate. In the Government’s view, this allows the cross-checking of information, which makes viable monitoring by the General Labour Inspectorate of compliance by enterprises with labour legislation, which is in turn reinforced by the action of the Directorate of Commercial Services and Investment through its Industrial Policy Department to ascertain that enterprises are making the correct use of the advantages granted by the Ministry of the Economy.

The Committee notes the conclusions of the 2011 high-level mission, according to which:

With regard to the situation of trade unions in the maquila, the mission noted the indication by the authorities that there are 740 enterprises in the sector, six unions and three collective contracts covering 4,600 workers out of a total of 110,000 workers. The mission notes that the number of workers in the maquila has fallen considerably in relation to previous years (around 300,000). The mission also notes the indication by the authorities that it is a sector which has been subject to special attention to verify compliance with labour rights and that there is a special unit of the Labour Inspectorate that is particularly active in addressing problems in the maquila. The mission considers, based on meetings with trade union federations, which are very concerned at the low level of unionization in the maquila, that training activities on freedom of association and collective bargaining should be intensified in the maquila sector and it encourages the Government to have recourse to ILO technical assistance in this respect.

The Committee requests the Government to continue providing information on the exercise in practice of trade union rights in maquilas (number of trade unions, their membership, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions taken by the authorities and number of inspections). The Committee expresses the hope that the Government will continue benefitting from ILO technical assistance so that full effect is given to the Convention in the maquilasr and it requests the Government to provide information on this subject. The Committee requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector regularly to the National Tripartite Commission and to provide information in this regard.

National Tripartite Commission. The Committee noted in 2010 that problems have arisen in this Commission in relation to the recognition by all concerned of the workers’ representatives, due solely to a division in UNSITRAGUA.

The Committee wishes to refer to the conclusions of the 2009 high-level mission, which read as follows:

It should firstly be noted that in recent times the trade union map has changed significantly. UNSITRAGUA has been divided into two groups. The mission obtained information from the Trade Union Federation UNSITRAGUA, registered by the Ministry of Labour, which is composed of eight or nine unions affiliated to the historical UNSITRAGUA (not registered, but which groups together around 100 unions), and from the administrative authorities. This information appears in the section of this report dedicated to interviews and will be forwarded to the Committee on Freedom of Association, which is currently examining a complaint, and the Government had requested technical assistance on this matter. The mission noted that the historical UNSITRAGUA (not registered) does not oppose the registration of the Trade Union Federation UNSITRAGUA and that, according to certain authorities in the Ministry of Labour, the application for the registration of the historical UNSITRAGUA is still pending (this is also the belief of the organization). However, the Minister of Labour indicated that, as one year had elapsed since the filing of the application and that there had been no change in the file, it was considered that the process needed to be started again from zero with a view to resolving the legal issues identified (principally the name of the organization and the possibility of the direct membership of workers, and not only of unions).

An important sector of the trade union movement, consisting of the CUSG, CGT and the historical UNSITRAGUA, which are affiliated or close to the International Trade Union Confederation (ITUC), is currently not represented on the Tripartite Commission on Labour Affairs. The mission drew the attention of the authorities to the need to include these organizations in the Commission on Labour Affairs, as tripartite dialogue cannot be undertaken effectively without an essential sector of the trade union movement. The employers’ representatives, represented by CACIF, indicated to the mission that they were not opposed to this.

The Committee requests the Government to ensure that the composition of the workers’ representation on the Tripartite Commission is based on strict criteria of representivity and requests the Government to take the necessary measures for that purpose. The Committee notes that the Committee on Freedom of Association at its session in November 2011 requested the Government to include the historical UNSITRAGUA in the National Tripartite Commission and to ensure that this organization is registered without obstacles. The Committee concurs with this recommendation.

Statistics and other matters. The Committee notes that the report of the ILO high-level mission in May 2011, indicates that it would be useful for the Government to provide clear statistics confined to trade unions that are in operation, and not those that have ceased to operate, and making a distinction between the public and private sectors, with a view to indicating the level of trade union membership and the coverage of collective bargaining in both sectors.

The Committee shares the views of the ILO mission and requests the Government to produce statistics on the unionization rate and the coverage of collective bargaining and other aspects of trade union activities.

The Committee also notes the mission’s indication that, as a follow-up to the recommendations of previous missions, part of the workers’ representatives and the employers’ representatives of the Tripartite Commission on Labour Affairs submitted a draft legislative text to the Congress for the establishment of an Economic and Social Council, which is under examination. The Committee requests the Government to provide information in this respect.

[The Government is asked to supply full particulars to the Conference at its 101st Session and to reply in detail to the present comments in 2012.]