Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)

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



A Government representative emphasized the Government’s continued action focused on lawful labour relations, social dialogue and its commitment to the promotion of decent work and freedom of association. With regard to the deaths of trade unionists, since the adoption of the “roadmap” concluded 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 between the Workers’ group of the ILO Governing Body and the Government of Guatemala (“the roadmap”), there had been significant progress in ensuring and respecting freedom of association, strengthening trade unionism and protecting trade union leaders. The Special Representative of the ILO Director-General in Guatemala had aided and witnessed technical assistance activities, including the provision of training to the judicial authorities, the Office of the Public Prosecutor and the Ministry of the Interior, which had been the result of substantial political and institutional efforts and commitment. All the cases had been transmitted to the Special Investigation Unit for Crimes against Trade Unionists of the Public Prosecutor’s Office with a view to improving the monitoring and developing criteria for investigations. A general directive for the effective criminal investigation and prosecution of crimes against trade unionists, members of workers’ organizations and other labour and trade union activists had been agreed upon and was being implemented. The Public Prosecution Services were investigating 70 cases, and it should be borne in mind that the country was beset by problems of criminality and violence that affected the entire population. With a view to better dealing with and solving the 58 cases of violent deaths of trade unionists brought before the Committee on Freedom of Association, the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) had concluded a collaboration agreement in September 2013 as part of reinforcement of investigation capacity. The CICIG had found that in only 37 of the 56 cases examined had the victim been a trade union member. The motives for the murders had varied, and only six people appeared to have been murdered as a result of their trade union activities, and in four cases, the connection of the victims with a union was not clear. Proceedings were under way and the results would be reported in due course. The Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists in Guatemala was also being applied to trade unionists. There had been 25 requests for protection made to the Public Prosecution Services. The trade union protection committee held monthly meetings with all trade union organizations as well as weekly meetings with trade union representatives and investigators from the Office of the Public Prosecutor to follow up on cases being investigated. The Ministry of the Interior had set up a direct telephone hotline and, most importantly, the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had been successfully established. The latter was examining cases submitted to the Committee on Freedom of Association and information would be provided on developments. Regarding legislative matters, the Government had submitted draft legislative reforms to the Tripartite Committee on International Labour Affairs, while the social partners had made their own proposals. As agreement had not been reached, the various proposals, together with the comments of the Committee of Experts, had been forwarded to Congress. With ILO assistance, the Government would continue its efforts to ensure that freedom of association and collective bargaining were respected. He therefore requested the strengthening of ILO presence in Guatemala.

The Employer members said that this case had been addressed on numerous occasions and was being examined by several ILO bodies through various mechanisms, and they therefore considered that, as it was before the Governing Body, the present case should not be examined by the Conference Committee. In addition to the complaints before the Committee on Freedom of Association, various matters considered serious and urgent relating to freedom of association and workers’ rights were covered by an article 26 complaint to the Governing Body. The case contained several elements, among which the murders of trade unionists affecting the peaceful exercise of freedoms should be highlighted. Over recent years, further murders had been reported. The case also referred to legislative issues, the application of the Convention in practice, registration of trade unions and rights in the maquila (export processing) sector. With regard to the murders, 58 cases were being examined by the Committee on Freedom of Association, 12 of which since 2013. At the national level, in addition to the Public Prosecutor’s Office, there was the CICIG, which was an international investigation body and which had analysed 37 cases, six of which were related to trade union activities. The CICIG had made suggestions for improving investigation methods. Most of the murders had occurred in areas of the country that were particularly violent and it had not been demonstrated, at least during the present discussion, that there was a practice of killing trade union members. The Special Investigation Unit for Crimes against Trade Unionists established in the Office of the Public Prosecutor had been strengthened, and there was also a mechanism for the protection of trade union leaders and members. The Government had adopted measures. An ILO high-level mission had also visited the country and a Special Representative of the ILO Director-General had been sent to the country to provide close and direct support for the required changes in law and practice. A request had been submitted to the Governing Body for the appointment of a commission of inquiry, and the Conference Committee was also examining the same allegations. It was therefore necessary to define the approaches and the most effective mechanisms for the proper examination of the application of Conventions and government replies to the supervisory bodies. With regard to legislation, several points needed to be emphasized, such as the number of members required to establish a union, and the requirement to be nationals of Guatemala and to work in the enterprise to be able to be elected as a trade union leader. These limitations should be reviewed. With reference to nationality, it should be understood that there was reasons of national sovereignty for limiting foreign nationals in trade union executive bodies. The Employer members had described in detail in their intervention during the general discussion of the General Report of the Committee of Experts their disagreement with the views of the Committee of Experts concerning Convention No. 87 and the right to strike. They emphasized that as there were no ILO standards on strikes, the scope and conditions of the exercise of the right to strike should be regulated at the national level, a position that had also been endorsed by the Government group in its position statement at the tripartite meeting held in February 2015, and endorsed by the Governing Body in March 2015. The Employer members reaffirmed their intervention during the discussion of the General Report that as there was not a specific standard on strikes, governments could legitimately adopt a different approach to strikes, to be determined at the national level. Regarding the roadmap and the application in practice of the Convention, certain institutions were operational and social dialogue should be prioritized to address the problems. There were two trade union organizations and awareness-raising campaigns in the maquila sector and information had been requested on their impact. In conclusion, this case, as it was on the agenda of the 324th Session (June 2015) of the Governing Body, should be settled by the Governing Body and not the present Committee.

The Worker members said that the Government of Guatemala had been conspicuous in having been invited to appear before the Committee on 21 occasions over the past 25 years. Such frequent inclusion of the country in the Committee’s list stemmed from the fact that it systematically refrained from taking corrective measures in response to the observations and conclusions of the ILO supervisory bodies in the field of freedom of association and collective bargaining. In many cases, the Government had simply chosen not to reply. Despite the conclusion of a Memorandum of Understanding and the Government’s commitment to follow a roadmap with respect to labour policy, and also the dispatch of technical missions and a high-level mission by the ILO, the Worker members observed that no substantial progress had been made. With regard to trade union rights and civil liberties, the Worker members deplored the fact that no light had been cast on the cases of 74 trade union members who had been assassinated over the past ten years, including 16 trade unionists in 2013 and 2014. Analysis of the report submitted to the Committee of Experts by the Government confirmed that none of the perpetrators of these crimes had been arrested to date. Moreover, no progress had been made on constructing a normative and institutional framework to protect workers against violations of their rights. In addition, no specific measures had been taken to ensure the free exercise of freedom of association in a climate in which trade union leaders and their families could be safe from all violence, pressure and threats. The Government had not paid sufficient attention to workers’ human rights. Rather than focusing its efforts on positive measures aimed at meeting its commitments towards the ILO, it had adopted measures that ran counter to decent work and workers’ rights. Such measures had been imposed without any consultation with the trade unions, which constituted a clear violation of the Conventions on collective bargaining and freedom of association. Furthermore, the unilateral announcement by the Government regarding non-renewal of collective agreements in the public sector was an infringement of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Even though the Government imputed that measure to the need to tackle the budget deficit, it should not refuse to negotiate, as this would constitute a flagrant violation of ILO Conventions. With regard to the serious problems of anti-union discrimination in the maquila sector, the legal obstacles, lack of inspections and slowness of the labour courts partially explained why there were only three enterprise unions and one collective agreement in the sector, which employed some 70,000 workers. In the majority of cases, the Government had not guaranteed the reinstatement of workers who had been dismissed illegally even though it had additional instruments that would have enabled it to revoke tax incentives and other advantages granted to exporters. Anti-union discrimination thus persisted in the sector, despite the Government’s indications. With regard to legislative issues, the Worker members regretted that the Employer members did not agree with the observations of the Committee of Experts. They expressed their concern at such a position being used as a pretext by the Government not to submit draft legislation to the Congress. Legislative reforms were sorely needed to enable the labour inspectorate to fulfil its mandate. With regard to the registration of trade unions, the Worker members emphasized that the labour judges and magistrates recognized themselves that there was an extremely high number of instances of non-compliance with court rulings ordering employers to reinstate individuals who had been dismissed for establishing trade unions. The obligations in question had never been fulfilled and, on the contrary, the processes for the selection of magistrates for the Supreme Court of Justice and the Court of Appeal clearly showed the total absence of judicial independence. Those processes were not in conformity with international standards, especially as far as their objectivity and transparency were concerned. In conclusion, the Worker members considered that the Government had failed to honour all of its commitments made in the context of the roadmap and had persisted in its indifference towards the repeated recommendations of the ILO supervisory bodies. Moreover, the Government had been brought before an arbitration board for systematic non-observance of its own Labour Code. The Worker members deplored the fact that the lack of significant progress was not due to a lack of instruments or resources, but the persistent lack of will by the Government. They welcomed the presence of the Special Representative of the ILO Director-General in Guatemala and considered the support of the international community to be of incalculable importance in view of the gravity of the situation concerning trade union rights.

The Employer member of Guatemala contested the fact that the present case was being discussed by the Committee as the facts under discussion had served as the basis for the complaint lodged under article 26 of the ILO Constitution, which would once again be examined by the Governing Body. The requirements of the roadmap were being complied with. The employers in the country were actively participating in tripartite forums, particularly in the framework of the elaboration of draft legislation in response to the comments of the Committee of Experts. There was the hope that the draft legislation would be submitted to Congress in the near future. Another issue on which the employers in the country were actively working was the awareness-raising campaign concerning freedom of association. With regard to the acts of violence, the ILO missions had managed to verify the will of the Office of the Public Prosecutor to solve the issues that had been raised by the Committee of Experts in its report. In any case, account should be taken of the information provided by the CICIG, which indicated that most of the crimes that had been reported as acts of anti-union violence had had in reality other causes. That was not an excuse for those crimes to go unpunished. He acknowledged that it would be very difficult for the Committee to solve the problems caused by the wave of criminality that affected the country, which went beyond the field of labour. The efforts that were being made by the Special Representative of the Director-General and the Committee for the Settlement of Disputes before the ILO were to be welcomed.

The Worker member of Guatemala welcomed the appointment of a Special Representative of the ILO Director-General in Guatemala, with a far-reaching role. The observations of the Committee of Experts were based not only on the usual sources, but also on information collected by ILO missions. The latest mission to visit the country in May 2015 had confirmed that the issues raised by the Committee of Experts had still not been resolved. Violations of human and civil rights in the country continued to be a serious problem. Up to now, no individuals had been imprisoned for the murders committed. A request had been made for an agreement to be reached with the CICIG to investigate these crimes, but there had been no response. Regarding the roadmap, there were no significant changes worth noting, as the Government had yet to move from general measures to specific action to protect trade unionists. Concerning the legislative reform which limited freedom of association, no progress had been made. On the registration of trade unions, nothing had improved, and statistical information was being sought on registrations and collective agreements. The Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had not addressed these issues and had only just started to examine a few cases, with little progress being achieved so far. Violations of trade union and labour rights were serious and were becoming more intolerable every day. The Government had failed to take advantage of the opportunity presented by the roadmap to take really significant action on the issue. Such commitments, which involved social and institutional change, required genuine participation by workers in identifying issues, developing solutions, and applying and monitoring those solutions. The trade unions were willing to meet to move forward in that regard, as the current labour situation left no room for delay.

The Government member of Cuba, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), recalled that the Government of Guatemala had appeared before the Governing Body on six occasions and one discussion of the present Committee to address the case. The Government had reiterated its commitment to the ILO supervisory bodies and had provided regular information on the situation and on the strengthening of the relevant institutions in the country. The Committee of Experts had noted that the Government was taking all possible steps to combat violence and impunity. She appealed to all sectors to continue working together to implement the measures agreed upon and any other measures that might be agreed to on a tripartite basis in the future. GRULAC was confident that the constituents would pursue their efforts to apply the Convention and supported the request to strengthen ILO presence in the country. Lastly, the parallel use of different mechanisms to address the same allegations continued to be a matter of concern, as it could weaken the functioning of the ILO supervisory bodies.

The Employer member of Panama said that it was not clear why the case had been included on the list of individual cases for examination by the Committee, as there had been a procedure since 2012 under article 26 of the ILO Constitution on the same issues. Since the complaint had been lodged, measures had been taken and concrete results had been achieved, such as the signing of the Memorandum of Understanding, the appointment of a Special Representative of the Director-General of the ILO, the preparation of a roadmap in October 2013, the creation of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, and the high-level mission of September 2014. The Government had demonstrated its willingness to comply with the commitments made in the roadmap. The efforts made by the ILO to promote the creation of dialogue round tables and to help the country to solve its problems were very important and had been fruitful. Guatemala was the third country in Latin America which was endeavouring in good faith to replace the tradition of confrontation with social dialogue and had offered proof that it was working to fulfil those objectives. For that reason, the discussion of the case was in contradiction with the aims of the ILO, especially since it was already under examination by the Governing Body.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, said that trade unionists should under no circumstances face harassment, intimidation, and certainly not death. While noting the information provided by the Government, she expressed serious concern about the persistent threats experienced by trade unionists and that little tangible progress had been made. During the discussion at the 323rd Session (March 2015) of the Governing Body on the article 26 complaint, the governments of the Nordic countries had supported the appointment of a Commission of Inquiry. She called on the Government to comply with its commitments regarding individual freedoms and public participation, the rule of law and legal protection. She urged the Government to take action for the investigation, prosecution and conviction of the perpetrators of the murders of trade unionists as well as other acts of violence. She expected that the Government would promptly take all the necessary measures to ensure the protection of trade union officials and members. She urged the Government to adopt the necessary reforms to align the national legislation with the Convention. The Congress of Guatemala should adopt on an urgent basis the legislative reforms requested by the Committee of Experts. The ILO was playing an important role in implementing the Memorandum of Understanding, but the Government had not taken sufficient advantage of that support. She urged the Government to strengthen its efforts to give effect to commitment to the roadmap and the Memorandum of Understanding, and she encouraged it to deepen and strengthen its engagement with the ILO, as well as with the social partners.

An observer representing Public Services International (PSI) said that up to now the crimes against trade union leaders had still not been punished. Several trade union leaders were under threat and had lodged complaints, that had gone unanswered. Impunity in the public service fuelled corruption, nepotism and the removal of workers’ collective rights and prerogatives. Short-term contracts and precarious work, without any type of social security or minimum benefits, were the Government’s preferred tools to maintain strict control over workers. Collective agreements were banned on the pretext of the need to deal with the huge fiscal deficit. There was a media campaign against the main trade unions, and therefore on collective bargaining. The Government refused to comply with the collective agreements that had been concluded or to participate in joint committees. The existence of “yellow unions” was also a major problem, as they entered into collective accords that reduced workers’ protection. The political climate was becoming increasingly volatile, which was having a major impact on the provision of public services, working conditions and trade union rights. The prevention of violence, the development of a culture of peace and dialogue, democracy and high-quality public services were key elements in ensuring the future that the country deserved. For these reasons, he called for the urgent establishment of a round table for the public sector in the Ministry of Labour and the creation of a permanent ILO office in Guatemala.

The Government member of Honduras said that his Government supported the statement made by GRULAC. It was the seventh time that the case had been discussed since November 2012. He welcomed the continuous cooperation between the Government and the ILO supervisory bodies. He trusted in the Government’s openness and willingness to engage in dialogue with all social partners and in its commitment to continue working with assistance from the ILO. He encouraged the Government to continue working to apply the Convention effectively.

The Worker member of Colombia said that anti-unionism was systematic in Guatemala. As such, the measures that had to be taken should go further than the creation of round tables for dialogue and promises of legislative change. An ambitious plan was required to establish freedom of association. In this case, as in no other, the ILO was providing proof of its effectiveness and utility. In Guatemala, the situation was characterized by impunity and a persistent generalized atmosphere of violence against trade unionists. There had been no significant progress in investigating acts of violence, and the protection measures taken bore no relation to the severity of the circumstances, and were therefore ineffective. There was a legal and institutional blockage of freedom of association, and the Committee of Experts had urged the Government to take steps to amend the Labour Code. Legal obstacles made it impossible to exercise trade union rights, including the right to strike, which was an integral part of the right to organize protected by the Convention. Trade unions were an example of democratic resistance and had held mass demonstrations to voice their anger at violence and corruption. The conclusions of the Committee should go beyond the expression of the usual concerns and general calls on the Government to accept ILO technical assistance and should specify the elements and deadlines of a plan to overcome the problems identified during the discussion.

The Employer member of Honduras indicated that it was curious that the case was being discussed once again, as it was under examination by the Governing Body under article 26 of ILO Constitution. The case should not therefore be discussed by the Committee. The Government was complying with its commitments in relation to the Special Representative of the Director-General and this case should be considered a case of progress as well as an appropriate, effective and ongoing intervention of the ILO. All of that was well-known to employers’ and workers’ organizations, which needed to work together to improve the labour environment in the country. Support should be provided for the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, which had a tripartite structure and reported good results.

The Government member of Switzerland emphasized that the serious acts of violence against leaders and members of trade unions, including alleged assassinations, were a matter of great concern. She echoed the regret expressed by the Committee of Experts concerning the situation and climate of violence and impunity that continued to prevail in Guatemala. New allegations of assassinations of trade unionists had emerged since the adoption in October 2013 of the roadmap to accelerate the implementation of the Memorandum of Understanding between the Government of Guatemala and the Workers’ group of the Governing Body. In this regard, she noted the efforts of the Government, particularly the establishment of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining and with the assistance of the Special Representative of the ILO Director-General, which contributed to the application of the Convention in practice. She also fully supported the request of the Committee of Experts that the Government investigate, without delay, all those allegations of violence and take rapid measures to ensure the adequate protection to trade union leaders and members. She commended the renewal of the mandate of the CICIG as a positive signal.

The Worker member of Spain, also speaking on behalf of the Confederation of Workers of Argentina (CTA Workers), the Confederation of Workers of Argentina (CTA Autonomous) and the General Confederation of Labour of the Argentine Republic (CGT RA), said that Guatemala had not allowed the Convention to be applied effectively since its ratification. The report of the Committee of Experts described some extremely serious events over many years that showed evidence of a resurgence. Reprehensible acts of violence against trade unionists, civil society leaders and rural workers, including 70 murders, were continuing with total impunity. Freedom of association was an inherent right in a democratic society, and civil liberties, especially respect for human life, were a vital prerequisite for the exercising of freedom of association. Losing that right would be detrimental to other civil guarantees concerning labour. There was an alarming gulf between law and reality in Guatemala. The Government must comply with the Committee’s conclusions. She recalled the conclusions of the missions and the supervisory bodies concerning the situation in the country, which observed the lack of progress and expressed profound concern. Murders were still occurring and there were systematic violations of civil liberties. Neither the rule of law nor democracy existed in the country. Collective bargaining was severely hampered by the actions of the State, which delayed the approval of collective agreements and prevented collective bargaining in the maquila sector. This ongoing policy of elimination of trade unionism needed to be seen in conjunction with the impunity of state and para-state forces, and with the ineffectiveness of the justice system, as almost no murders of trade union leaders had been solved. In conclusion, he proposed the creation of a special ILO permanent mission to monitor the situation, take action and assist the Government in its legal reforms and practice.

The Government member of the United States said that serious violations of freedom of association, including acts of violence against trade unionists, the need for the reform of the Labour Code and the lack of full respect of trade union rights in the maquila sector, persisted in Guatemala. While the Government had regularly informed the ILO supervisory bodies of its plans to bring law and practice into compliance with international standards, both the reports of the Committee of Experts and of the Governing Body indicated that this goal had not been achieved. The investigation and prosecution of murders and other acts of violence against trade unionists required additional and urgent action. Some measures had been taken to improve the effectiveness of investigations, but significant steps were still needed to identify and prosecute perpetrators of violence and to protect trade union members at risk. The enforcement of labour laws respecting the right to freedom of association and to collective bargaining remained inadequate. She expressed concern at the Government’s consistent failure to investigate effectively and sanction adequately anti-union retaliation. Measures had to be taken in this regard. Action was also needed to enforce compliance with court decisions, particularly in cases of anti-union discrimination and unfair dismissals in which the court had ordered the payment of back wages and reinstatement. The lack of protection for the right of workers to organize and to engage in collective bargaining had a negative effect on unionization, particularly in the maquila sector, in which there were only three active unions. She urged the Government to make all the necessary efforts to address these issues as a matter of urgency, and to provide information to the ILO on any steps taken. She looked forward to a review of the government report on the 2013 roadmap submitted to the Governing Body at its 324th Session (June 2015).

The Worker member of Honduras said that the Government, through acts of intimidation and repression which prevented the establishment of trade unions, was denying workers the right to organize as guaranteed by the Convention. He recalled that the Convention allowed the right to strike, but in Guatemala, persons who went on strike endangered their life and were subjected to threats and persecution, which were methods used to intimidate those who dared to exercise their rights. He hoped that the various interventions during the discussion would lead to action to ensure respect for freedom of association and the right to strike, in accordance with the Convention. He considered that ILO assistance had been important, but that the Government had not complied with all the recommendations made. He urged the ILO to establish mechanisms to guarantee good enterprise practices and the existence of trade unions and respect for union activities by workers’ representatives. The most sacred human right was the right to life and nothing could justify taking this right away from union leaders who defend labour rights and the improvement of the lives of workers.

The Employer member of El Salvador believed that the serious acts of violence that were occurring in Guatemala and El Salvador were mainly due to lack of appropriate government policies and the lack of coordination between the various public entities involved, including the police, prosecutors and the CICIG. These problems were also due to the lack of adequate training for judges, police inspectors and prosecutors, especially regarding the use of science and technology which, despite the progress made in recent years, were still not being used fully in Central American countries. He referred to the example of DNA analysis laboratories which, if they employed staff specialized in evidence gathering, could greatly contribute to reducing impunity. According to recent studies, more than 93 per cent of the most serious offences committed in Guatemala, Honduras and El Salvador were not solved by the authorities, which explained the lack of credibility of the criminal justice system. He shared the indignation of the Worker members that the murder cases discussed had still not been solved. Central American countries needed more effective security policies, and a better coordination between the police, prosecutors, judges and forensic science for the operation of the criminal justice system. This was particularly important as it affected private investment, and therefore job creation. He admitted that the case of Guatemalan trade union leaders was a problem that also affected the countries in the northern part of Central America. He supported the position of the Employer members that the report submitted to the Governing Body provided evidence that progress was being made in the investigations. As there was already a complaint under article 26 of the ILO Constitution regarding this case and the Committee for the Settlement of Disputes before the ILO was achieving positive results, he believed the case should continue to be dealt with by the Governing Body, rather than the present Committee.

The Government member of Belgium expressed concern at the climate of violence that prevailed in the country. Investigations into the murders of some 20 trade unionists had still not been completed and the situation of impunity persisted, as confirmed by the report of the CICIG which had been sent to the ILO. In addition, various legislative measures that had been announced, such as the protocol for the implementation of security measures, had not been adopted by the Government. Even though the case had been on the Committee’s agenda for a number of years, and despite the adoption of the roadmap in 2013, nothing suggested that sufficient progress had been made to bring an end to the killings and violence. One murder of a trade unionist was one murder too many and a climate of violence meant the absence of the rule of law. The Government needed to implement specific and determined measures to ensure observance of the Convention, which would be the subject of close scrutiny at the next session of the Governing Body in November 2015.

The Worker member of the United States indicated that there were two reasons why this case should be discussed by the Committee. The first reason was the number of murders of trade unionists in the country. The second was the ineffectiveness of governments in applying ILO standards to protect workers’ rights in the context of trade. The Central American Free Trade Agreement (CAFTA) concluded between Guatemala and the United States in 2006, required both countries to recognize and protect freedom of association and other rights included in the ILO Declaration on Fundamental Principles and Rights at Work of 1998. The Conference Committee had raised serious concerns regarding the application of the Convention in Guatemala before the entry into force of the CAFTA. The Committee on Freedom of Association had heard 25 cases regarding Guatemala. The Workers’ group had filed a complaint under article 26 of the ILO Constitution. However, Guatemala continued to receive trade benefits without demonstrating its compliance with the Convention. In 2008, the unions of Guatemala and the United States had filed a complaint concerning abuse of labour rights under the labour chapter of CAFTA. Since then, efforts to address the situation in Guatemala had been made through consultations and dispute settlement mechanisms under CAFTA. Evidence presented during this process had demonstrated systematic failure by the Government to enforce laws on freedom of association. A report by the United States Government Accountability Office, published in November 2014, documented violations of freedom of association in Guatemala, including: attempts to bribe union leaders to encourage them to quit their jobs and discourage workers from joining a union; firing workers for their union affiliation or for not disbanding unions; non-enforcement of relevant laws; inadequate budgets to investigate, prosecute and punish perpetrators of violations of freedom of association; and the failure to reinstate illegally dismissed workers. Virtually the same information had been sought under the ILO and the CAFTA mechanisms, but no sufficient evidence of progress on these violations had been provided by the Government under either process. Neither process had offered remedies to the workers concerned. In conclusion, he recalled that the instruments supervised by the Committee played a role in protecting rights outside the ILO and its supervisory mechanisms, and that ILO fundamental Conventions were increasingly being used to underpin agreements on trade and workers’ rights between member States, although they were failing so far to offer the hope of globalization with social justice.

The Government representative said that he had taken note of the points raised by the participants in the discussion. The country’s major structural problems had and would take time to resolve. All sectors would have to be involved, just as they would have to appreciate the positive side of the changes required by globalization and the technological era. Labour issues, which had been completely disregarded by previous governments, were no exception. The current Government intended to address those issues in a responsible manner, despite the difficult context and repeated complaints to ILO bodies, and would continue to follow up the issues that were being discussed in Committee, as well as others, with a view to improving the circumstances of the approximately 80 per cent of citizens who were not fully employed. The Political Constitution of Guatemala guaranteed freedom of association as a fundamental human and trade union right. That was why legal provisions had been adopted to ensure that freedom of association was respected, and it was the Government’s duty to establish the necessary safeguards. The reform of the Labour Code that increased the power to impose sanctions was currently before Congress, whose responsibility would be to adopt a text that was in line with the Constitution. The impact of measures guaranteeing the right to organize was visible. The functioning of the labour courts had improved and proceedings were now more rapid, in particular with respect to decisions to refer cases to the Office of the Public Prosecutor of persons who had not given effect to court rulings. In 2014 alone, 987 such decisions, and some 476 already in 2015, had already been made, which meant that those guilty of not giving effect to a court ruling might face penal proceedings. As a result of the protection measures introduced recently, trade union leaders now enjoyed protection, and there had been convictions in 58 cases of violent deaths of trade unionists. Examples included the murder of Luis Arturo Quinteros Chinchilla, who was not a trade union member, who had been attacked with a firearm during a fight in a car park, and Luis Ovidio Ortiz Casos, a union leader, murdered by a minor and two youths involved in criminal activities. The Government had the courage to take the action that was still needed, together with the other state bodies, in the hope that the social dialogue that had been developed in recent years would remain permanently. Finally, he announced that, in view of the total readiness of Guatemala’s workers to collaborate, a tripartite decision had been made to hold a tripartite meeting the next day with Conference delegates to address the issues under debate.

The Worker members said that they would have preferred not to have to address the murders of trade unionists, as that would mean that the Government had implemented all the conclusions of the supervisory bodies. They referred to the comments made during the discussion questioning whether dealing with this case in the Conference Committee and the Governing Body might undermine the supervisory system. The problem was that no real will had been shown by the Government in either body. There was no choice but to seek approval for the establishment of a Commission of Inquiry under article 26 of the ILO Constitution. In October 2013, the Worker members had agreed to give the Government one last chance and had agreed to the tripartite roadmap to address some of the issues raised by the supervisory mechanisms. Over 18 months had passed since then, and more than a year had elapsed since the deadline for compliance, but there had been no progress on the substantive issues. The time granted to Guatemala had now run out. Significant technical assistance, most recently for the judicial system, had been already provided. There had not been any political will by the Government to establish the rule of law, as demonstrated by the fact that high-ranking officials were involved in illegal activities. Trade unionists were being murdered and dismissed for their union activities. Labour inspection was not effective. The rare court rulings that upheld workers’ rights were ignored with impunity. There were no trade unions in the garment sector. This case could not be discussed for another 25 years. They urged the members of the Committee who were also members of the Governing Body to support the establishment of a Commission of Inquiry at the November 2015 session of the Governing Body. The Worker members further called for: the Government to implement the roadmap, including the amendment of the relevant legislation, and to accept the support of the CICIG to reopen investigations into crimes against workers and trade union members; the Government to institutionalize tripartite consultations on all matters covered by the Convention; and the representative of the Director-General in Guatemala to produce a detailed report on the implementation of the roadmap for discussion at the November 2015 session of the Governing Body. They called for the conclusions of the case to be included in a special paragraph of the report of the Conference Committee.

The Employer members, taking note of the different views expressed on developments in the situation in the country, considered that the ILO, through its special representative, should continue its process of observation, support and assistance so that the institutions could operate more effectively. In Guatemala, the institutional structure was adequate and confidence should be placed in the authorities, affording them assistance so that they had the necessary mechanisms. Noting that support for the CICIG would demonstrate the Government’s political will to make progress with the investigation of criminal acts committed against trade union members, the Employer members called for the work of the CICIG to be strengthened and supported the proposals made by the Worker members in that regard. They also emphasized the importance of pursuing social dialogue and strengthening bodies in order to arrive at joint solutions. In particular, the Committee for the Settlement of Disputes under the ILO should be strengthened and that the experience of other countries could be useful in that respect. In addition, progress should continue to be made on all the elements of the roadmap, taking into account the observations and comments already made by the Employer members in their first intervention. The Office of the Public Prosecutor should also take decisive action to ensure that investigations were carried out more rapidly and progress should be made on coordination through inter-ministerial agreements, leading to concrete results on the investigation of crimes. The protection of trade union members should be ensured by allocating the necessary resources. It was also important to continue with the programmes for investigators and prosecutors with a view to facilitating investigations in these areas. With respect to legislative issues relating to the right to strike, the Employer members indicated that these issues should be addressed by the competent body in accordance with Guatemalan domestic legislation, and hoped that the most appropriate mechanisms could be found through social dialogue. As the questions raised were being addressed in the context of the various cases that were before the Committee on Freedom of Association, and that they would be discussed in the next session of the Governing Body, the Employer members considered that it should be for the Governing Body to decide on the best approach to be adopted.

Conclusions

The Committee took note of the oral information provided by the Minister of Labour and Social Protection on the issues raised in the Report of the Committee of Experts and the discussion that followed.

The Committee observed that the issues raised by the Committee of Experts principally related to: (i) numerous murders of, and acts of violence against, trade union leaders and members and the need for these events to be properly investigated and punished and for rapid and effective protection to be given to trade union leaders and members at risk; (ii) the need to bring various aspects of domestic legislation into conformity with the provisions of the Convention, including the requirements for forming industrial trade unions, the conditions for election as a union leader, and the exclusion of various categories of public sector workers from enjoying the right to organize; and (iii) recurrent comments from trade union organizations denouncing, on the one hand, the practices of the Ministry of Labour and Social Protection, which allegedly made it difficult to register trade union organizations freely, and, on the other, serious problems with the application of the Convention in relation to trade unions’ rights in the maquila sector.

The Committee took note of the Minister of Labour’s emphasis on the Government’s commitment to decent work and freedom of association, as could be seen in the following results related to the application of the Convention: (1) the Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor was now centralizing the investigation of all such cases (70 in total); (2) a general instruction on investigating and prosecuting these crimes had been agreed between the Office of the Public Prosecutor and a technical group from the trade union sector and was now in effect; (3) of the 58 cases of violent death under investigation, convictions had been handed down in eight and ten arrest warrants had been issued in other cases, while an arrest warrant had been requested in one further case; (4) in Guatemala, as in other countries in the region, there was a problem with criminality and violence affecting the population in general; (5) the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) had signed a collaboration agreement in 2013 to build investigation capacity; (6) from an examination of 56 criminal cases, it appeared that a significant number of victims were not members of trade union organizations and that in the majority of cases the motives were unrelated to trade unionism (gang related, extortion, etc.); (7) 25 requests for protection of trade unionists had been submitted under the protocol for the implementation of immediate preventive security measures to protect human rights defenders in Guatemala; (8) an emergency telephone line had been set up to deal directly with threats of violence against trade unionists; (9) at present, failure to abide by court rulings could give rise to criminal proceedings and hundreds of breaches had been reported; and (10) Congress was seeking to strengthen the power of the labour inspectorate to impose penalties for labour violations. In addition, tripartite dialogue had been strengthened. In that regard, a Special Committee on the Handling of Conflicts referred to the ILO in the areas of freedom of association and collective bargaining had been set up and begun examining cases. In addition, the Government had submitted draft legislative reforms to the country’s tripartite body relating to the comments of the Committee of Experts. When an agreement had not been reached, the draft, including the comments of the social partners, had been transmitted to Congress. The Guatemalan tripartite delegation had agreed to meet during the Conference to address all the above issues at once and make progress. Lastly, he expressed appreciation for the technical assistance and training for public institutions provided by the Special Representative of the ILO Director-General in Guatemala and requested that the Special Representative’s office be strengthened.

Bearing in mind the discussion, the Committee requested the Government to:

• take note of the Committee’s regret at the murders of unionized workers referred to in the observation;
• apply the roadmap to combat violence and impunity, and in particular, to: (i) reach an agreement with CICIG on investigating cases of trade union deaths with a view to arresting and charging those responsible, including the instigators; (ii) strengthen the Unit for Crimes against Trade Unionists; (iii) guarantee that meetings of the Trade Union Round Table for Comprehensive Protection would be held, with the participation of the social partners; (iv) reinforce the programme to protect trade unionists and allocate additional financial resources to cover all leaders requiring protection; (v) guarantee the application of the Framework Agreement for cooperation among the various international agencies in order to facilitate exchange of information on crimes against trade unionists; (vi) ensure that investigators and prosecutors within the Public Prosecution Services receive training, in collaboration with the ILO; and (vii) guarantee the functioning of the emergency telephone line set up in May 2015 for submitting complaints of failure to respect freedom of association;
• institutionalize participation by the social partners in formulating policy within the various social dialogue bodies, particularly the Economic and Social Council, the Tripartite Commission on International Labour Affairs and the Special Committee on the Handling of Conflicts referred to the ILO, in order to find solutions to problems arising in practice on labour matters, and, in consultation with the most representative workers’ and employers’ organizations, prepare a bill based on the comments of the Committee of Experts and submit it to Congress as a matter of urgency and bring domestic legislation into conformity with the Convention, as stipulated in point 5 of the roadmap; and
• continue activities with the Special Representative of the ILO Director-General, with technical cooperation support, so that the Special Representative can prepare a report on the implementation of the roadmap, to be submitted to the Committee of Experts at its next meeting and to the Governing Body before its November 2015 Session.

The Committee requested the ILO to continue supporting the Office of the Special Representative of the ILO Director-General in Guatemala.

The Government representative took due note of the conclusions. He reiterated the commitment made by the Minister of Labour who stated that the Government will continue to follow up on these issues with due consideration.