Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations from the International Trade Union Confederation (ITUC), the General Confederation of Workers of Guatemala (CGTG), the Guatemalan Union, Indigenous and Peasant Movement (MSICG), and the Trade Union of Workers of Guatemala (UNSITRAGUA), received on 1, 3 and 22 September 2014. The observations refer to subjects which are already being examined by the Committee, in particular, allegations of extremely serious acts of violence which are affecting the trade union movement.

The Committee also notes the observations from the International Organisation of Employers (IOE), received on 1 September 2014. The Committee further notes the joint observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the IOE, received on 28 August 2014, in which the organizations express their concern at the climate of violence affecting the country but also express their appreciation of: (i) the measures adopted by the Public Prosecutor’s Office in this respect; (ii) the report of the International Commission against Impunity in Guatemala (CICIG) relating to the violent deaths of trade unionists and the outcome thereof; and (iii) the establishment of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining.

Complaint made under article 26 of the ILO Constitution concerning non-observance of the Convention

The Committee notes that at its 322nd Session (November 2014), the ILO Governing Body decided to defer until its 323rd Session (March 2015) the decision whether to appoint a commission of inquiry to examine the complaint submitted under article 26 of the ILO Constitution by a number of worker delegates to the 101st Session (June 2012) of the International Labour Conference concerning non-observance of the Convention by Guatemala. The Governing Body’s decision was based on the information provided by the Government and the employers’ and workers’ organizations of Guatemala, and on the information gathered by the ILO mission (hereinafter, the mission) which was undertaken from 8 to 11 September 2014, in relation to the follow-up to the “roadmap” adopted on 17 October 2013 by the Government of Guatemala in consultation with the country’s social partners, with a view to accelerating the implementation of the Memorandum of Understanding (MoU) concluded on 26 March 2013 between the Workers’ group of the ILO Governing Body and the Government of Guatemala.

Trade union rights and civil liberties. The Committee notes with regret that for a number of years, like the Committee on Freedom of Association (CFA), it has been dealing with allegations of serious acts of violence against trade union officials and members, and the related situation of impunity. The Committee again notes that, in the context of Cases Nos 2445, 2540, 2609, 2768 and 2978, the CFA notes with deep concern that the allegations are extremely serious and include numerous murders (58 murders have been examined so far by the CFA since 2004) and acts of violence against trade union leaders and members, in a climate of persistent impunity.

The Committee notes that the Guatemalan trade union federations indicated to the ILO mission that: (i) there is no significant progress in the investigations into acts of violence against trade unionists reported to the ILO; (ii) the situation of impunity with regard to the murders of trade unionists; (iii) the launch of the effective criminal prosecution of crimes against trade unionists, which had been discussed from 2013 onwards and agreed upon by the trade union committee and the Chief Public Prosecutor, has not taken place; (iv) the trade unions have not been called upon at any stage of the criminal proceedings relating to the murders of trade unionists, nor have they been able to appear as complainants in those proceedings; (v) the Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists in Guatemala, presented by the Ministry of the Interior in August 2014, does not mention trade unionists or trade union activities; (vi) on several occasions the Ministry of the Interior announced the launch of a hotline for reporting crimes against trade unionists but this has never become operational; and (vii) the CICIG report on the murders of 58 trade union officials and members brought to the attention of the ILO bears witness to the impunity that exists in Guatemala.

The Committee notes with deep concern that, according to the information provided to the mission by the Autonomous Popular Trade Union Movement of Guatemala and the Coordinating Committee of the Global Unions in Guatemala, 16 trade unionists were murdered between 2 January 2013 and 20 August 2014. The Committee notes that the Public Prosecutor’s Office informed the mission that all the cases are being investigated, that an arrest warrant exists with regard to one of them and that an arrest warrant is being requested in relation to another.

The Committee notes the Government’s statement that it is taking all possible measures to combat violence and impunity and that it refers in particular to the following:

• -With respect to the list of 70 murders of trade union officials and members (58 cases examined to date by the CFA and 12 additional cases since 2013), the Public Prosecutor’s Office indicates that: 42 cases are under investigation; eight cases resulted in convictions; three cases resulted in acquittals; in 11 cases arrest warrants were issued; in two cases arrest warrants were requested; in two cases the criminal prosecution was discontinued; one case was dismissed; and in one case the hearing was awaited.
• -Further to the collaboration agreement concluded with the Public Prosecutor’s Office in 2013, the CICIG submitted a report on 31 July 2014 entitled “Status of investigations into the deaths of trade unionists in Guatemala”, in which the CICIG reviewed the investigation files established by the Public Prosecutor’s Office. In relation to the content of the report, the Government emphasizes that: (i) the CICIG confined its analysis to 37 cases in which the files of the Public Prosecutor’s Office contained evidence of the trade union status of the victims; (ii) in six of the 37 cases, there are definite or probable links between the motive for the killing and the victim’s trade union activities; (iii) the CICIG made suggestions for improving the investigation methods of the Public Prosecutor’s Office; (iv) most of the deaths occurred in locations in the country that are known for being particularly violent; and (v) there is no proof, at least from the survey under consideration, of systematic elimination of trade union members in Guatemala.
• -The Special Investigation Unit for Crimes against Trade Unionists has been strengthened (from five members in 2011 to 12 members in 2014). An order has been issued to transfer all cases of crimes against trade unionists which are under investigation in the country to this specialist unit.
• -In line with the agreement signed on 30 August 2013 between the Public Prosecutor’s Office and the trade union organizations, the trade union committee at the Public Prosecutor’s Office has met on six occasions.
• -Discussions are under way with the trade unions regarding a launch of the effective criminal prosecution of crimes committed against trade unionists.
• -On 1 August 2014, Ministerial Agreement No. 550-2014 was issued, amending the previous agreement of 2013, which enables trade union officials and members to be participants, and not just observers, in the Standing Trade Union Technical Committee on Comprehensive Protection.
• -Seven trade unionists have been granted protective measures, and three more requests for protection have been received.
• -A total of 3 million Guatemalan quetzals (approximately US$384,000) have been allocated for the protection of trade unionists, and in 2015 a request will be made to increase the budget.
• -In September 2014, a framework cooperation agreement was signed between the judiciary, the Public Prosecutor’s Office, the Ministry of the Interior and the Ministry of Labour and Social Welfare, which provides for the establishment of an inter-institutional coordinating group, whose function will be to expedite and exchange information on crimes committed against unionized workers.
• -Collaboration is continuing with the ILO with regard to training for investigators and prosecutors at the Public Prosecutor’s Office in the area of international labour standards.

Lastly, the Committee notes that the mission interviewed a CICIG representative, who indicated that the CICIG merely reviewed, on the basis of available information, the investigations conducted by the Public Prosecutor’s Office and did not undertake investigations itself, and that the investigation criteria should be reviewed in order to determine whether the murders in question are linked to the victims’ trade union activities. Moreover, the Chief Public Prosecutor informed the mission that the CICIG report is not definitive and is merely an additional tool for use by investigators at the Public Prosecutor’s Office. While taking due note certain measures taken by the authorities to improve the effectiveness of the investigations into the murders of trade union officials and members (strengthening of the Special Investigation Unit for Crimes against Trade Unionists, coordination between the various ministries and public institutions), the Committee strongly urges the Government to continue making every effort to: (i) investigate all acts of violence against trade union officials and members, including those reported in 2013 and 2014, with a view to apportioning responsibility and punishing the perpetrators, taking the victims’ trade union activities fully into consideration in the investigations; and (ii) provide prompt and effective protection for trade union officials and members who are at risk. The Committee requests the Government to continue providing information on all the measures taken and the results achieved in this respect.

Articles 2 and 3 of the Convention. Legislative issues. The Committee recalls that it has been asking the Government for many years to take steps to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which establishes the requirement for 50 per cent plus one of those working in the sector, in order to be able to establish sectoral 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, to be legal, strikes should be called by a majority of the workers and not by the majority of those casting votes; 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 non-essential services and specifies 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 criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been asking the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other headings of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that, by virtue of the 2013 “roadmap”, the Government undertook to submit to the Tripartite Committee on International Labour Affairs the necessary draft legislative reforms and indicated that the National Congress would adopt the corresponding legislation. The Committee notes the information provided by the Government and the mission report, which indicates that: (i) on 10 December 2013, the Government submitted three draft reforms to the tripartite constituents (the Government attached copies of the drafts to its report); (ii) the social partners presented their own proposals for reform; and (iii) in view of the impossibility of reaching tripartite agreement on the legislative reforms, the Government referred the social partners’ reform proposals and the relevant comments of the Committee to the National Congress. The Committee notes that the trade union organizations claimed to the mission that the Government had not submitted any draft legislation to bring national law into line with the Convention.

While observing that the bills drafted by the Government do not enable the legislation to be brought into line with the Convention, in respect of most provisions that are the subject of reform, the Committee notes that during the mission a Declaration of Intent was signed between the National Congress and the ILO International Labour Standards Department, which envisages activities relating to international labour standards and technical assistance in relation to the drafting of labour legislation. In view of the above information, the Committee expresses the strong hope that the National Congress will adopt as soon as possible the legislative reforms requested by the Committee. The Committee requests the Government to provide information in this respect.

Application of the Convention in practice. The Committee welcomes the establishment of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining, which was set up in the context of implementation of the roadmap with the assistance of the Special Representative of the ILO Director-General in Guatemala. The Committee trusts that this body, which is of a tripartite nature and is directed by an independent mediator, will contribute towards settling the numerous cases of violation of the Convention reported by the trade union organizations.

Registration of trade union organizations. The Committee notes the recurrent observations from the trade union organizations regarding obstacles to trade union registration. The Committee notes in particular: (i) objections to the labour administration’s practice of referring to the employer the list of founders of the trade union which is being established in order to verify that they belong to the enterprise; and (ii) reports of numerous cases in which registration is denied because the union membership includes public employees on precarious contracts. The Committee requests the Government to ensure that the aforementioned practices in the registration process are abolished and that the cases reported by the trade union organizations are examined in the context of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining, so that the issues can be settled quickly. The Committee requests the Government to provide information on the results achieved in this respect.

Maquila sector. The Committee recalls that for some years it has been noting the comments from trade unions concerning serious problems of application of the Convention in relation to trade union rights in the maquila (export processing) sector. The Committee notes the Government’s indication that there are three active enterprise unions in this sector. In view of the above, the Committee requests the Government to intensify its efforts 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 which it undertook to implement in 2013, to give special attention to the maquila sector and to continue providing information on the exercise in practice of trade union rights in this sector.

[The Government is asked to reply in detail to the present comments in 2015.]