Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Complaint under article 26 of the ILO Constitution concerning non-observance with the Convention (essentially referring to serious acts of anti-union violence and legal provisions that are incompatible with the requirements of the Convention)

The Committee notes that, following the lodging of the complaint, a Memorandum of Understanding (MoU) was concluded on 26 March 2013 between the Government of Guatemala and the Chairperson of the Workers’ group of the ILO Governing Body. The Committee notes that, under the terms of the MoU, the Government undertakes, among other steps, to take the necessary measures to: (i) determine responsibilities and penalize the perpetrators and instigators of the murders of trade unionists; (ii) provide effective protection to trade union leaders and members against violence and threats; (iii) promote raised awareness and the reconciliation of the social actors within the context of freedom of association and collective bargaining; and (iv) amend the legislation to give effect to the comments of the Committee concerning the Convention.

The Committee also notes that, following the conclusion of the MoU, a Special Representative of the Director-General of the ILO assumed office in the country in July 2013. In addition, with a view to evaluating progress in the application of the MoU, an ILO high-level tripartite mission (hereinafter, the mission) visited Guatemala from 23 to 27 September 2013 and submitted its conclusions to the Governing Body at its 319th Session (October 2013). The Committee notes that, following the mission, a “roadmap” was adopted with tripartite support in which specific timelines were established to facilitate the implementation of the MoU. Taking this information into account, the Governing Body has postponed the decision to establish a Commission of Inquiry until its 320th Session (March 2014).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion on the application of the Convention held by the Conference Committee on the Application of Standards in June 2013. The Committee notes that in its conclusions the Conference Committee emphasized the urgency of the full implementation of the MoU and made specific recommendations identified at appropriate places in this observation.

Comments from workers’ and employers’ organizations. The Committee notes the comments of the International Trade Union Confederation (ITUC), the General Confederation of Workers of Guatemala (CGTG), both dated 30 August 2013, and the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG), dated 3 September 2013, which refer in particular to extremely serious acts of violence affecting the trade union movement.

The Committee also notes the comments of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), dated 28 August 2013, expressing concern at the climate of violence affecting the country, but assessing positively the measures taken by the Office of the Public Prosecutor, the Government and the judicial authorities in this respect. The CACIF adds that ways are being found to resolve the lack of conformity between national law and practice, on the one hand, and the content of the Convention, on the other.

Trade union rights and civil liberties. The Committee regrets that for several years it has, like the Committee on Freedom of Association, been examining allegations of serious acts of violence against trade union leaders and members and the related situation of impunity. The Committee notes that, in the context of Cases Nos 2445, 2540, 2609 and 2768, the Committee on Freedom of Association has noted with increasing concern that the allegations are extremely serious and include many murders (58 to date since 2004) and acts of violence against trade union leaders and members, in a climate of total impunity.

The Committee notes with deep concern the comments of the ITUC, the Autonomous Popular Trade Union Movement of Guatemala, the Coordination of Global Trade Unions and the MSICG alleging further murders of trade union leaders and members since the beginning of 2013 (the number of which is reported to be between two and nine) and the persistence of the situation of impunity. The Committee also notes that during the discussion in the Conference Committee on the Application of Standards information was provided concerning the murder of seven trade union leaders and members since the beginning of the year. The Committee notes that the Conference Committee, in its conclusions, expressed regret at these new allegations and urged the Government to continue taking the steps necessary to provide protection for trade union leaders and members under threat and to bring an end to impunity.

The Committee notes the following information provided by the Government in its report and gathered during the mission’s visit:

• -of the total of the 58 murders of trade union leaders and members denounced to the CFA, 28 have been referred to the criminal courts (verdicts have been issued in five cases, with one conviction to a sentence; in 13 cases arrest warrants have or will shortly be issued; in six cases, an indictment has been issued or the trial is awaited; and in four cases the penal responsibility expired due to the death of the accused); in another 21 cases the investigation is closed, while for the last nine cases investigations are continuing;
• -the Office of the Public Prosecutor considers that of the 58 murders denounced to the CFA, 16 victims were trade union leaders and 14 were trade union members, while there was no evidence in the remaining cases that the victims were members of any trade union organization. In addition, the Office of the Public Prosecutor considers that two of the murders were clearly related to the trade union activities of the victims, but that in the majority of the cases the murders were related to common criminality;
• -on 24 September 2013, a collaboration agreement was concluded between the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) with a view to strengthening the capacities of the Office of the Public Prosecutor for the analysis and investigation of cases of violence against trade union leaders and members. The CICIG informed the mission that 22 of the 58 murders referred to above were forwarded to it for an analysis of the investigations carried out up to now and, where appropriate, for recommendations to be made to the Office of the Public Prosecutor on any additional investigations that might be necessary;
• -the Office of the Public Prosecutor signed an agreement on 30 August 2013 with the Autonomous Popular Trade Union Movement of Guatemala and the Coordination of Global Trade Unions in Guatemala formalizing the trade union working group of the Office of the Public Prosecutor, which is dedicated to investigations relating to acts of violence against trade union leaders and members;
• -training activities for investigators and prosecutors of the Office of the Public Prosecutor on international labour standards are continuing; and
• -the Standing Technical Trade Union Committee on Comprehensive Protection, which is composed of the authorities of the Ministry of the Interior and the trade union organizations referred to above and is dedicated to preventing crimes against trade union leaders and members and addressing specific acts of violence affecting the trade union movement, is operating regularly with monthly meetings. The Ministry of the Interior has provided in recent months various protection measures for members of the trade union movement in jeopardy.

The Committee also notes that the Autonomous Popular Trade Union Movement of Guatemala and the Coordination of Global Trade Unions in Guatemala made the following comments to the mission: (i) despite the measures adopted by the authorities, there has only been one conviction and the investigations have been closed in a large number of cases; (ii) the trade unions do not share the opinion expressed by the Office of the Public Prosecutor that the murders of trade unionists were crimes of passion or of common criminality; (iii) the protection measures to guarantee the safety of trade union leaders and members are inadequate or non-existent; (iv) the murders of trade union leaders and members committed in 2011, 2012 and 2013 should be included in current investigations; and (v) the measures adopted by the authorities lack the support of a state policy aimed at the respect of freedom of association.

The Committee finally notes the following conclusions of the mission relating to acts of violence against the trade union movement:

• -“The mission observed that the measures taken ... could be conducive to expediting and completing the investigations. However, the mission regretted that these measures had not, in the great majority of cases, yet led to the determination of responsibilities, the prosecution or sanctioning of the perpetrators.” ... “The mission hoped that the re-examination of these cases by the CICIG would provide the reassurance needed to clarify the motives of these murders and to combat impunity. The mission encouraged the intensification of the efforts in this respect and expressed the firm hope that additional resources would be provided to the Office of the Public Prosecutor, particularly to the special unit dealing with crimes against trade unionists.” ... “The mission noted with concern the information it received of the recent murder of trade unionists who had requested protection but had not received it.” ... “The mission considered that the protection measures urgently needed to be strengthened and adequately resourced and that these actions should be included in a national policy to combat anti-union discrimination and the promotion of freedom of association. The policy should be developed in close consultation with the social partners.”

The Committee notes with deep concern the new allegations of murders of trade union leaders and members and other acts of violence against the trade union movement which are reported to have occurred in 2013. While noting certain initiatives taken by the Government and the Office of the Public Prosecutor to accelerate investigations into murders of trade union leaders and members, the Committee urges the Government, in accordance with the conclusions of the mission, to take as a matter of urgency, and in the framework of the “roadmap” referred to above, all the necessary action to: (i) finalize the investigations that are currently being conducted; (ii) investigate all acts of violence against trade union leaders and members, including those denounced in 2013, with a view to identifying responsibilities and punishing those who are guilty, taking fully into consideration in the investigations the trade union activities of the victims; (iii) provide rapid and effective protection to trade union leaders and members who are at risk; and (iv) pursue a national policy of promoting respect for freedom of association. The Committee requests the Government to provide information in its next report on all the measures adopted and the results achieved in this respect.

Legislative issues. The Committee recalls that for many years it has been requesting the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code establishing the requirement for 50 per cent plus one of those working in the occupation, in order to be able to establish industry trade unions;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity, to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which strikes are not called by the majority of those casting votes, but by a majority of the workers; section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in services which are not essential, and other obstacles to the right to strike; and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and penal sanctions in the event of a strike by public officials and workers in certain enterprises.

In addition, the Committee has been requesting the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and others of the budget) finally enjoy the guarantees afforded by the Convention. (In its previous comments, the Committee noted rulings in this respect. However, problems continue to arise in practice as the criteria set out in case law have not been transposed into legal texts.)

The Committee notes that the high-level tripartite mission indicated the following:

The mission regretted that to date no progress had been made in this regard. The mission recalled that ... it was the responsibility of the Executive Branch, in consultation with the social partners, to bring to the attention of the legislature the Bills requiring decision, and the responsibility of the legislator to adopt the necessary legislative reforms; ... the mission called for urgent action to bring the national legislation into conformity with Convention No. 87.

The Committee notes that in the “roadmap” the Government undertakes to submit to the Tripartite Commission on International Labour Affairs the necessary draft legislative reforms within 60 days and that the Congress of the Republic will adopt the corresponding legislation within 120 days. Taking this information into account, the Committee firmly hopes that all the necessary measures will be taken to bring the legislation into conformity with the Convention and that the Government will provide information on this matter in its next report. The Committee recalls that the Government may have recourse to the technical assistance of the Office if it so wishes, which may include training and awareness-raising activities on international labour standards for the legislature.

Registration of trade unions. The Committee notes that the Government informed the mission of the accelerated operation of the system for the registration of trade unions, with the average period required having fallen from seven months to one month. However, the Committee also notes the information provided by various trade unions to the mission and various new cases submitted to the CFA concerning obstacles to the registration of trade unions. In this regard, while noting the progress reported by the Government, the Committee requests it to review, within the framework of the Tripartite Commission, the specific cases mentioned by trade unions with a view to ensuring that the problems are resolved rapidly.

The maquila sector. The Committee recalls that for some years it has been noting the comments of trade unions concerning serious problems of application of the Convention in relation to trade union rights in the maquila sector. The Committee notes the Government’s indication concerning the significant increase in labour inspections in the this sector. While noting this information, the Committee requests the Government to continue taking all measures in its power to ensure full respect for trade union rights in the maquila sector. The Committee invites the Government, in the context of the awareness-raising campaign that it has undertaken to conduct, to give special attention to this sector. The Committee also once again requests the Government to continue providing information on the exercise in practice of trade union rights in the maquila sector (the number of active trade unions, number of members, the number of collective agreements and their coverage, complaints of violations of trade union rights and the decisions taken by the authorities, and the number of inspections).

[The Government is asked to reply in detail to the present comments in 2014.]