Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

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



The Government provided the following written information.

Progress in compliance with the road map resulting from the complaint of non-observance of Convention No. 87, presented under article 26 of the ILO Constitution. Investigation of murders and of rulings handed down to date. The Government of Guatemala expresses its concern at these acts and, through the Special Investigation Unit for Crimes against Trade Unionists, which is part of the office of the Public Prosecutor, is continuing its investigation with a view to the conviction of the perpetrators of the crimes concerned. In March 2016, the 326th Session of the Governing Body was informed of 14 convictions. Since then there has been further progress in the investigation. The Special Unit of the office of the Public Prosecutor has made progress in its inquiries into the case of Bruno Ernesto Figueroa, who was a member of the healthcare integration system subsidiary of the National Trade Union of Health Workers of Guatemala (SNTSG) (Case No. 2609 of the Committee on Freedom of Association), as follows: (a) on 14 April 2016, formal charges were brought and the opening of proceedings was requested against four persons for the crimes of murder, attempted murder and criminal association; (b) on 16 May 2016, the Department of Guatemala Tenth Court of First Instance dealing with drug trafficking and crimes against the environment accepted the charges and criminal proceedings were opened; (c) the hearing for the start of the public trial of one additional person charged with obstruction of justice and criminal association is due to take place on 29 August 2016.

Progress relating to the cooperation agreement between the International Commission against Impunity in Guatemala (CICIG) and the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor. On the basis of the cooperation agreement between these two bodies, four meetings have been held to follow up the investigations and solve the crimes. Observations and recommendations were made during the meetings with regard to a number of cases, resulting in a five-year sentence for Gerardo Aníbal López (convicted) in the case concerning Marlon Dagoberto Vásquez (victim) and the termination of criminal proceedings in the case concerning Jorge Ricardo Barrera Barco (victim) relating to the death of the trade unionist Rómulo Emanuel Mejía Peña. Recently, the Ministry of Labour held several meetings with the office of the Public Prosecutor and the CICIG to follow up the former’s inquiries, and the CICIG was asked to cooperate to speed up and give priority to the investigation of these cases. The Commissioner and Public Prosecutor said that they fully supported the efforts to solve the crimes.

Compliance with General Instruction No. 1-2015 to improve the effectiveness of investigations into the murder of union officials and members. The case of Mynor Rolando Castillo Ramos. Since General Instruction No. 1-2015 came into force, the Special Investigation Unit has complied with the investigation procedures established in the Instruction, as shown by the investigation into the death of Mynor Rolando Castillo Ramos, a member of the Jalapa Municipal Workers’ Union, which occurred in 2015. The investigation, which was quickly undertaken, enabled the office of the Public Prosecutor to bring formal charges and the trial to begin. On 18 May 2016, the Department of Jalapa Court of First Instance dealing with drug trafficking and crimes against the environment accepted the charges and opened criminal proceedings against one person charged with murder and attempted murder, who had previously been under psychiatric treatment.

Risk assessments for union officials and members and adoption of protective measures. First quarter of 2016. The Ministry of the Interior reported that in the first quarter of 2016 that it received 14 complaints/requests for safety measures, in response to which the Risk Assessment Department of the Personal Protection and Security Division of the National Civil Police analysed the risks incurred and concluded that the level of risk was low. Consequently, no protective measures were granted.

Requests for the application of the preventive security mechanism according to the Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists, made by the Office of the Public Prosecutor. In the first quarter of 2016, the office of the Public Prosecutor, through its Special Unit, requested the Ministry of the Interior to issue seven personal preventive security measures for trade union leaders and members. In addition, requests were made to the National Civil Police for eight perimeter security measures.

The free 1543 emergency number to report acts of violence or threats against human rights activists. The specialists working on the 24-hour emergency number coordinate immediate support through the National Civil Police and by activating the Protocol for the Implementation of Immediate and Preventive Security Measures for the victims concerned, while the risk assessment is being carried out. During the first quarter of 2016, calls to the emergency number gave rise to two complaints to the office of the Public Prosecutor, which are being investigated by the Special Investigation Unit for Crimes against Trade Unionists and the Special Investigation Unit for Crimes against Journalists.

Training on freedom of association for officers operating the 1543 emergency number. On 29 March 2016, with technical assistance from the ILO, the Ministry of Labour and Social Welfare provided training on the right to freedom of association, the right to organize and the right to collective bargaining for officers operating the 1543 emergency number of the Ministry of the Interior, advisers at the Ministry of Labour call centre and other officers of the National Civil Police. A total of 50 persons were involved in the training, which aimed to equip them with the tools to apply the necessary mechanisms to ensure the safety of individuals associated with trade unions in Guatemala.

Progress in relation to the Protocol for the Implementation of Immediate and Preventive Security Measures for trade union members, officers, activists and leaders, and labour rights activists, and on the provision of premises for their activities. On 23 February, 16 March and 17 May 2016, round table meetings attended by the institutions concerned and trade unions were held to revise the Protocol for the protection of trade unionists. On 23 February, it was agreed to wait for observations from the trade unions before continuing to draft the Protocol; these observations were sent on 1 March. The purpose of the 17 May meeting of the round table on trade union matters was to present, revise and discuss the draft Protocol of the Ministry of the Interior. At the meeting it was agreed that the trade union federations would submit their comments and observations by 24 May, with a view to reaching agreement and signing the Protocol. However, on 23 May, the Autonomous Popular Trade Union Movement and Global Unions of Guatemala sent a note stating that the Protocol had been imposed upon them, that no account had been taken of the claims of the unions, and that if these were included in the instrument, they would be in a position to study it and possibly give their approval. The Government therefore made further arrangements for the trade unions to make their comments and express their views so that the terms of the Protocol could be agreed upon. The Government therefore convened more meetings so that the trade unions could express their views and make comments and the Protocol could be agreed upon and approved. It reviewed the dialogue and the related proceedings to make it clear that it was not imposing a Protocol without its endorsement by the unions, taking into account its sustainability and implementation by the Ministry of the Interior.

Establishment of a budget item to cover the costs of National Civil Police officers assigned to personal protection duties. It is important to emphasize that no one benefiting from security measures is required to pay for food, lodging or other expenses for the officers assigned to them. The procedure is currently being assessed to improve the financial conditions of officers assigned to the Personal Protection and Security Division, as the budget allocated to the National Civil Police and the Ministry of the Interior is not sufficient to cover these costs. A special bonus payment for the officials is under examination.

Legislative reforms. A consultant has been engaged under contract to draw up the preliminary draft text of the reforms of the Labour Code in relation to freedom of association and collective bargaining with a view to bringing its provisions into conformity with Convention No. 87. It is planned to submit the draft reforms to Congress following consultations with the workers and employers at the end of September 2016. The Labour Commission of the Congress of the Republic has been approached concerning the harmonization of the legislation with international labour standards, starting with public campaigns on the importance of the reforms to the Labour Code, involving joint communication and analysis by the Ministry of Labour and Social Welfare and the Labour Commission. A preliminary draft has also been prepared of a legislative initiative to amend the Labour Code in relation to the application of administrative penalties for labour law violations covered by the General Labour Inspectorate, which will be submitted for tripartite consultation as soon as possible before being tabled in the Congress of the Republic.

Registration of trade unions. The Ministry of Labour, through the General Directorate of Labour, receives applications for the registration of trade unions and the recognition of their legal personality. There has been a significant increase in the registration of trade unions, with 52 unions being registered in the last quarter of 2015 and 61 in the first quarter of 2016.

Review and settlement of disputes by the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining. The Dispute Settlement Committee which has been operating since 2014, is reviewing 18 cases, in nine of which there are complaints pending before the Committee on Freedom of Association, while nine complaints have been brought directly to the Dispute Settlement Committee. The cases have been reviewed and examined by the Mediator and the Technical Secretariat to identify those which could be resolved by the Dispute Settlement Committee. Information will be provided on the outcome of this work.

Awareness campaign on freedom of association and collective bargaining. Work has begun on launching and promoting the awareness campaign, translated into the Maya, Kaqchikel and Kiche languages, through community radio broadcasts throughout the country that reach eight million listeners, as well as other initiatives to promote freedom of association and the right to bargain collectively. The campaign is aimed at sectors where there are few trade unions, such as the maquila sector. Information is available on the websites and social media of 14 government institutions: the Secretariat of Planning and Programming of the office of the President; the Secretariat for Food Security and Nutrition; the Secretariat for Peace; the Civil Aviation Authority; the Ministry of Culture and Sport; the Ministry of the Economy; the Ministry of Agriculture and Livestock; the Ministry of Social Development; the Ministry of Communication; the Ministry of Finance; the Ministry of the Interior; the Ministry of Foreign Affairs; TGW Radio; and the Government television channel. In conclusion, it is important to note that, in addition, the Government has submitted an amendment to Congress to the Act for the approval of the annual Budget that increases the financial resources of the judiciary so as to allow it to deal with and resolve the cases before it, reduce impunity and facilitate access to justice in Guatemala. This is all part of a process of short-, medium- and long-term structural reform in the country. A national dialogue, under the leadership of the Presidents of the three highest bodies, was therefore launched in May 2016 to strengthen action to combat impunity, under the slogan “For a reform of justice in Guatemala”.

In addition, before the Committee, a Government representative said that her Government was committed to complying with the obligations set out in the ratified Conventions. That commitment had already been demonstrated in a letter from the President of Guatemala to the Director-General of the ILO in March 2016, in which he also expressed his commitment to complying with the Memorandum of Understanding and the roadmap to address the issues regarding the Convention raised in the complaint lodged under article 26 of the ILO Constitution. At its 326th Session, the Governing Body had welcomed this communication and the report submitted by the Government, which described the progress made in the first weeks since the Government had taken office. She referred to the action taken from March to June 2016, which would continue to be implemented in preparation for the report that would be submitted to the Governing Body in November 2016. With reference to the role of the three branches of the State, she said that she was accompanied by a delegation from the Congress of the Republic, led by the President of the Labour Commission, with whom an intense process of coordination and cooperation had been initiated to promote the alignment of the legislation with the international labour standards, which would involve the participation of workers and employers. The strategies developed by the new Government for the 2016–20 period included: (1) combating corruption, modernizing the Government and strengthening the labour inspectorate by increasing its transparency and effectiveness; (2) guaranteeing food security, comprehensive health care and education, particularly through the reinforcement of the occupational safety and health system, with action and strategies relating to prevention and worker protection, and plans to combat and eliminate child labour through the management mechanism established in the roadmap to ensure that Guatemala is a country free from child labour; (3) promoting decent work on the basis of an update and definition of the national policy on employment as the general framework for the implementation of actions, plans and programmes aimed at reducing the decent work deficit in the country, decreasing informality in the labour market and increasing competitiveness and economic development in general; (4) combating poverty and extreme poverty; and (5) enhancing national security through the establishment of mechanisms that create decent work opportunities in the country to prevent crime and migration. These strategies were based on fundamental principles, such as dialogue, consensus and inclusion of stakeholders, and the legality, comprehensiveness and holistic perspective of public policy, while giving priority to the most vulnerable groups, including women, indigenous peoples, migrants, children, adolescents and young people. With regard to the application of the Convention, she said that, in her capacity as Minister, she had attended meetings at trade union offices, and the President had met with trade union leaders on several occasions. That demonstrated the commitment of the Government to building trust, promoting dialogue and seeking a common agenda. Furthermore, 61 trade unions had been registered in the first few months of 2016. The Government recognized the challenges presented by the situation of historic violence in the country, which also affected the lives of trade unionists. These challenges required profound structural changes. To that end, the “National dialogue: Towards the reform of the justice system in Guatemala” had been launched, with the aim of strengthening action against impunity in the country.

The CICIG Commissioner and the Chief Public Prosecutor had expressed their full commitment to convicting the perpetrators of criminal offences, having recorded 14 convictions so far. Progress had also been made in some pending investigations that were being examined by the Committee on Freedom of Association. She also referred to progress in the cases dealt with by the Dispute Settlement Committee. For example, in the case of the municipality of Masagua in Escuintla, the basis for a payment settlement of 7 million quetzals had been developed for 41 workers for unpaid wages, putting an end to a four-year dispute. All these achievements showed that the President and the Government remained firmly committed, despite constraints arising from the general situation in the country. The Minister appreciated the Director of the International Labour Standards Department having accepted her invitation to visit the country in July 2016. Finally, she reiterated her Government’s concern at the simultaneous use of several mechanisms to investigate the same allegations in relation to a particular country against which a complaint was being considered by the ILO Governing Body. She considered this to be a duplication of mechanisms, which undermined the functioning and credibility of the ILO supervisory bodies.

The Worker members emphasized that the case of Guatemala had been discussed by the Committee on 22 occasions in the last 25 years because of the country’s systematic refusal to take action in response to the serious observations and conclusions of the ILO supervisory bodies and because murders of trade unionists were continuing in a situation of almost total impunity. In September 2015, Mynor Rolando, a member of the Jalapa Municipal Workers’ Union, who had been unfairly dismissed and whose reinstatement had been ordered by the labour court, was shot dead (as another nine activists had been previously), while waiting for implementation of the reinstatement order by the mayor of the municipality and the payment of outstanding wages to the illegally dismissed employees. Instead, he had been targeted and harassed on account of his trade union activities and because he had filed a complaint in 2013 with the Committee on Freedom of Association, which had urged the Government to take the necessary steps to ensure the safety of trade unionists who were under threat. The Government had given no indication of any measures taken, even though the issue of the violence and impunity with which trade unionists were confronted in the country was well known to the ILO supervisory bodies. In its report, the Committee of Experts noted the “tragic” lack of progress in that area, which was an appropriate term to describe the fact that almost all the perpetrators and instigators of the murders of 74 trade union leaders and members were at liberty in a situation of total impunity. Of even greater concern was the fact that the office of the Public Prosecutor had called into question the anti-union motives for the murders, while recognizing that the appropriate investigation procedures had not been carried out. The Government was failing to protect trade unionists who were harassed, as the trade union leaders who were granted protection had to meet the cost of food and accommodation for their bodyguards and sometimes chose to discontinue the protection because of its cost. Despite the establishment of a telephone emergency line to report such acts of violence, it was clear that not all risks had been properly assessed, and that many threats against trade union leaders and members had not resulted in any prosecution by the office of the Public Prosecutor. The Government also remained indifferent to repeated requests from the trade unions to participate in the drafting of the protocol on the implementation of security measures. On the contrary, the Government had presented workers’ representatives with a fait accompli by inviting them to meetings at very short notice to sign draft documents in the preparation of which they not been involved.

Moreover, no progress had been made in the implementation of many other key elements of the roadmap agreed with the ILO. For 25 years Guatemala had been asked to amend provisions of the Labour Code which were contrary to the fundamental right to freedom of association, but the current Government appeared to be choosing to go down the same route as that taken by previous governments by failing to amend: section 215(c) of the Labour Code, which established the requirement for “50 per cent plus one” of those working in the sector in order to be able to establish a sectoral trade union; sections 220 and 223, which established 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; and section 241, under the terms of which, in order to be lawful, strikes had to be called by a majority of the workers, and not by a majority of those casting votes; and by failing to ensure that various categories of public sector workers enjoyed the guarantees established by the Convention. The proposals made by the national trade unions reflected the observations of the Committee of Experts, but had also been ignored. It was to be hoped that the employers’ organizations would also play a more constructive role in pursuit of the common goal. However, a number of encouraging signs gave grounds for optimism, such as the abandonment of the decree on differentiated minimum wages, which aimed to fix a lower wage for the poorest municipal workers in the country, and the Ministry of Labour had begun to take measures to process applications for trade union registration. The Worker members also welcomed the launch of the campaign to raise awareness of freedom of association, which however remained on a very limited scale, since no use had been made of the mass media to reach society as a whole. However, in practice, while promoting freedom of association, the Government was stigmatizing collective bargaining for public sector unions and had published a list of collective agreements concluded with various government institutions that were supposedly detrimental to the state budget. It was unacceptable to hold the workers and collective agreements responsible for several decades of financial mismanagement and corruption. In conclusion, despite the significant efforts that had been made, they said that the situation remained extremely serious and all stakeholders needed to intensify their efforts to ensure the implementation of the roadmap without delay.

The Employer members said that this case was the one that had been examined more than any other in the history of the Committee. In that regard, they expressed concern at the fact that the case was being examined simultaneously by different supervisory bodies and questioned the articulation of these mechanisms. The Government had sent information on the measures taken to implement the roadmap agreed with the social partners. Social dialogue was becoming more fluid, and there had been progress since the case had been examined by the Committee of Experts. The dialogue between the President, the Minister of Labour and workers should be highlighted, along with the dialogue between the CICIG, the Public Prosecutor and the public prosecution services on the clarification of acts of violence. However, it was to be regretted that more cases had not been solved. Measures were needed in that regard, as well as to guarantee better protection for trade unionists under threat. It was impossible for them to provide for their own protection, and resources should be allocated for that purpose. With regard to legislative issues, particularly the requirement to be Guatemalan in order to hold trade union office, there needed to be a balance between trade union rights and the sovereignty of the State. They emphasized that there had been an increase in trade union registration. The Tripartite Commission on International Labour Affairs appeared to be making progress in its work, and employers and workers had both submitted draft reforms of the Labour Code to Congress. The Disputes Settlement Committee was an excellent mechanism, but better results were needed. In that regard, priority should be given to dialogue within the country. The Employer members rejected the suggestion that the application of the Convention should be examined from a sectoral point of view, particularly in the maquilas, as that was not provided for under the Convention. They highlighted the cooperation agreement signed with the European Union, but said that the Government should say whether the project would fund the continued presence of the representative of the Director-General’s in the country.

The Worker member of Guatemala emphasized that, in spite of the ILO’s efforts, the authorities were not abiding by their commitments, and systematic violations of the Convention continued. Trade unionists were still being subject to coercion, threats, persecution, intimidation, discrimination and unjustified mass dismissals. The situation was one of the most serious in the world, as reflected in the Global Rights Index 2016 report of the International Trade Union Confederation (ITUC), and trade union organizations had reported the murder of 74 trade union leaders, 18 of them since January 2013. The use of anti-union dismissals was also customary practice. The State was failing to conduct investigations, shed light on the facts, convict those responsible or even make enterprises reinstate trade unionists when final rulings required them to do so. The severity of the situation had been reiterated by the ILO supervisory bodies, and, within the framework of the Central America and Dominican Republic Free Trade Agreement (CAFTA–DR), the Government of the United States had requested that an arbitration panel be set up to deal with repeated violations of labour rights, highlighting the situation of freedom of association and collective bargaining. Technical round tables and the Disputes Settlement Committee had not produced the desired results. The presence of the Office of the Representative of the ILO Director-General in Guatemala was important, no progress had been seen with regard to the State’s commitments under the roadmap. Although minimal steps had been taken on the awareness-raising campaign, at the same time the Government and the office of the Public Prosecutor were conducting an open campaign against collective bargaining, with many collective agreements being called into question and legal action taken against workers engaged in bargaining. The Government’s actions and omissions demonstrated its lack of interest in finding a solution to the serious situation. The Government had a historic opportunity to implement the roadmap in practice, but if the failure of compliance persisted, the trade unions, while offering their support to make those commitments a reality, would insist on the appointment of a Commission of Inquiry.

The Employer member of Guatemala drew the Committee’s attention to the simultaneous recourse to several supervisory mechanisms. The case under discussion was part of a complaint presented under article 26 of the ILO Constitution that was currently before the Governing Body. Considerable progress had also been made over the years on the issues raised by the Committee of Experts. Regarding the killings of trade union leaders in recent years, he reiterated his indignation at such acts and called for them to be elucidated and the perpetrators punished. However, he welcomed the strengthening of the country’s institutions, both the office of the Public Prosecutor, which was responsible for bringing criminals to trial with the assistance of the CICIG, and the judiciary. Although few and far between, there had recently been convictions in some of the cases under review. But the lines of inquiry should not be restricted to anti-union cases, as the level of violence in Guatemala was high. He denied that anti-union violence as such was endemic in the country. He also regretted that workers refused to include employers in the inter-institutional coordination machinery that dealt with the problem, which would provide them with access to information and allow them to contribute to resolving a highly complex issue. He supported every effort to strengthen Guatemalan institutions with a view to elucidating the cases under discussion with the collaboration of the office of the Public Prosecutor and the CICIG, and though the establishment of special tribunals to deal expeditiously with crimes against trade union leaders, and the adoption of the necessary protection measures for trade union leaders and members who felt threatened in the exercise of their functions. As to the non-compliance with the Convention of certain provisions of the Labour Code and Political Constitution, he said that the process of consultations on the proposed reform had begun at the end of 2015 with the comments that the employers had sent to the workers, who had in turn submitted a very comprehensive draft incorporating their suggestions. It was to be hoped that, with the support of an independent expert provided by the ILO, the Government would shortly be in a position to present a final text to the Tripartite Committee which, after it had been duly discussed, could be placed before the Congress. He also drew attention to the public awareness campaign on freedom of association that the three parties had agreed upon, and to the work of the Disputes Settlement Committee. The employers participated in that Committee and considered it the best way of settling differences. It would be useful to have the same commitment by the workers in that and other bipartite and tripartite bodies. In conclusion, he expressed the gratitude of the employers of Guatemala for the ILO’s work in the country, especially that of the Representative of the Director-General in Guatemala.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Norway and the Republic of Moldova, reaffirmed the engagement of those States to promote the universal ratification and effective implementation of the fundamental ILO Conventions. These States attached great importance to all human rights, including freedom of association, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The EU and its Member States had followed closely the discussions and expressed their views on the case of Guatemala in the Governing Body with regard to the implementation of the 2013 roadmap and its indicators. He welcomed the strong commitment of the new Government of Guatemala to taking the necessary measures to enable full implementation of the Convention and the positive steps recently taken in this regard. He also welcomed the increased cooperation with the ILO, and invited the Government to step up its efforts, with the assistance of the ILO and in consultation with the social partners, in the following priority areas. First, there was a need for protection and to combat violence and impunity against trade union representatives. Despite some measures taken by the Government in this area, impunity persisted. It was therefore crucial to ensure proper follow-up of cases of killings of trade union officials and members, as well as the timely prosecution and conviction of the perpetrators. It was also crucial and urgent to ensure greater protection of trade union representatives at risk. Second, legislative reforms should be undertaken to bring the legislation into line with the Convention, with the assistance of the ILO. Finally, welcoming a significant increase in the registering of trade unions in the second quarter of 2015, he called on the Government to continue taking further steps to enable the unimpeded registration of trade unions. The EU and its Member States expressed their readiness to continue supporting Guatemala in its efforts to comply with the Convention.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, welcomed the political will of the new Government demonstrated in the first few months since it had taken office. The Government had shown signs of its commitment to guarantee labour rights, including the right to organize, and to promote the creation of decent work in the country, in cooperation with the ILO. That commitment had been reiterated in the letter of 9 March 2016 from the President to the ILO Director-General, which had been submitted to the March 2016 session of the Governing Body for its consideration. He urged the Government to redouble its efforts to clarify acts against trade union leaders and to provide the necessary guarantees to protect freedom of association. He also noted the actions carried out by the new Government to make progress in the implementation of the roadmap and timetable, presented at the 326th Session of the Governing Body in March 2016. At that session, the Governing Body had once again urged the Government to take, without delay, all the measures necessary to fully implement the key indicators and the roadmap, including the priority areas that continued to require additional and urgent action; and had deferred to its 328th Session (November 2016) the decision to consider the establishment of a Commission of Inquiry. It had finally invited the international community to facilitate the necessary resources to enable the Office of the Representative of the Director-General in Guatemala to strengthen its support for the tripartite constituents in the implementation of the Memorandum of Understanding and the roadmap. He called on all the parties to continue working together on the implementation of the measures adopted and future measures agreed in a tripartite setting with a view to identifying sustainable solutions and the full application of the Convention in the country. He recalled that the observance of the fundamental rights at work, particularly freedom of association and collective bargaining, was an essential component for achieving decent work. He therefore supported the work and the technical assistance provided by the Office of the Representative of the Director-General in Guatemala and called for its continuation for the full implementation of the roadmap in Guatemala. He concluded by reiterating his concern about the simultaneous use of supervisory bodies to address the same allegations relating to a country that were already being examined by the Governing Body. Such a duplication of mechanisms could weaken the functioning of the ILO supervisory bodies.

The Government member of Panama welcomed the efforts made by the Government with regard to the handling of criminal cases and the support provided for the Disputes Settlement Committee, as well as the commitment to making progress in implementing the roadmap and timetable, as reported to the Governing Body at its 326th Session in March 2016. Furthermore, he highlighted the valuable technical assistance provided by the ILO with regard to the recommended legislative reforms. On the other hand, he expressed concern at the fact that the situation was being examined by several supervisory bodies at once. Moreover, the Government of Panama, as extempore chair of the Council of Ministers of Central America and the Dominican Republic, reiterated its concern at the inclusion of Guatemala and two other countries in the region, namely Honduras and El Salvador, in the list of individual cases to be examined by this Committee. There was a lack of objective and transparent selection criteria. It seemed that the Committee did not value all the support that the ILO gave to countries in the region.

An observer representing Public Services International referred to threats to the life of many trade union leaders and the protection available to them, which they had gained through their own efforts and through the existence of international solidarity. However, these protection measures came with a cost, as trade unionists had to pay for the food and transport expenses of those responsible for their protection. In some cases, they even had to forego the protection, which demonstrated the existence of a structural problem that prevented the exercise of freedom of association. In the public sector, the gravity of the situation highlighted by the Committee of Experts continued to persist. There had been no progress in the investigation of threats to the life of trade unionists, and there was a deliberate campaign to abolish collective bargaining in the public sector, where 19 collective agreements were being renegotiated. In other cases, collective agreements were alleged to be unconstitutional. The media were also being mobilized against freedom of association, and trade unions that had concluded collective agreements were being attacked. There were still instances of anti-union dismissals, unions were being refused registration and a union leader had been arrested. However, he knew nothing about the initiative to amend the provisions of the Labour Code relating to freedom of association. For years there had been talk of organizing bipartite dialogue for the public sector to resolve these and other issues, but nothing had come of it. The workers were open to dialogue with international support in order to bring an end to the attacks on public sector trade unions and on public services. Urgent action was still needed to remedy corruption and to reinforce public investment and financing, decent work and the legitimacy of trade unionism in the public sector.

The Worker member of Colombia said that the fact that the case had been under consideration for years proved the existence of one of the clearest, most persistent and most systematic violations of freedom of association. In its comments, the Committee of Experts had referred to: (1) the need to investigate and prosecute those responsible for acts threatening the life or physical integrity of trade union leaders and members; (2) the protection of trade union leaders and members through real and effective measures; and (3) the adoption of legislation that was in line with the provisions of the Convention, which promoted and guaranteed the existence of trade union organizations without undue interference from employers or the State. He added that the case was similar to that of his country. It concerned continuous violations of freedom of association. These were not isolated events. The violations formed part of a legal and institutional structure to restrict the growth and existence of trade union organizations. An ambitious plan was needed to guarantee freedom of association that had a real impact on the ground by reducing the endless violations of freedom of association, promotion of the right to organize and bringing to an end the impunity for crimes against trade unionists. According to Guatemala’s trade union organizations, there had been no meaningful progress in the investigation of acts of violence against trade unionists. The protection measures that the Government said it had taken were not effective. He concluded by expressing the hope that the Committee would set deadlines and specific action to overcome the problems identified.

The Employer member of Mexico expressed regret at the violence of which trade unionists were victims, but said that it was occurring in the context of the violent situation in the country. He considered that action aimed at a solution to the problems needed to be supported. He nevertheless regretted that the examination of the same situation before different supervisory bodies was duplicated, and considered that this did not contribute to solving the problems.

The Government member of Canada referred to a number of issues raised by the Committee of Experts in its comments and the article 26 process, including the agreed action called for in the roadmap. Expressing strong support for the completion of the roadmap, she called on the Government of Guatemala to spare no effort in making demonstrable progress towards legislative reforms. Her Government was troubled by the additional allegations of serious acts of violence against trade union officers, as outlined in the report of the Committee of Experts. She called for adequate investigatory, prosecutory and protective measures to be undertaken without delay in order to allow the free exercise of labour rights. Reaffirming the commitment of her Government to respect human rights through the full application of international human rights instruments, such as Convention No. 87, she urged the Government of Guatemala to translate into action its commitment to the implementation and respect for these instruments.

The Worker member of Spain, speaking on behalf of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), considered that Guatemala was the most blatant example of the systematic violation of fundamental rights and failure to respect the principles of good faith which should prevail in the application of international treaties. He regretted the lack of progress in a case that had been examined by the Committee on 18 occasions in the past 25 years. In addition to the most extreme forms of violence against the trade union movement and the climate of impunity, there were still many other violations of freedom of association such as the criminalization of union activities, the ineffective judiciary and labour inspectorate and the lack of protection against acts of intimidation, interference and anti-union discrimination. While on the one hand, it was launching a timid public-awareness campaign on freedom of association, on the other, the Government was engaging in reprehensible efforts to discourage workers from joining trade unions through threats, persecution and dismissals. The right to bargain collectively was also being infringed by the office of the Prosecutor–General which was taking legal action against collective agreements that had been negotiated with State institutions and municipalities. In this context, he called on the Government to bring an end to restrictions on: the establishment of trade unions and the right to elect union leaders freely; the right of organizations to carry out their activities, including the possibility to impose compulsory arbitration in the public transport sector and to impose sanctions, including penal sanctions, in the event of strike action or other forms of trade union protest by public employees or workers in certain enterprises; the denial of trade union rights in practice for many public sector workers engaged under budget item 029; the restrictions on the right to strike; the deliberate delay in reinstating trade unionists who had been dismissed; and the restrictions on collective bargaining in the public sector and the maquila sector.

The Employer member of Panama said that the ILO was acting in a contradictory manner regarding countries that were trying to resolve conflicts through tripartite social dialogue. On the one hand, for over ten years, the ILO had promoted the establishment of tripartite dialogue round tables in member States with the aim of addressing and resolving existing differences at national level by means of dialogue and negotiation between the social partners. He emphasized that this methodology had proven to be an appropriate way to resolve disputes, as demonstrated by the experiences of the tripartite dialogue round tables created by Colombia and Panama. The Government, with support from the ILO, had decided to follow this path by establishing a tripartite dialogue round table and developing a roadmap aimed at resolving conflicts and complaints brought before the Organization. On the other hand, by including countries that were taking this route on the list of cases to be discussed by the Conference Committee, the ILO was sending a discouraging message that it was not worth making the necessary efforts to strengthen tripartite dialogue round tables. He emphasized that, on the contrary, the ILO should redouble its efforts through the provision of technical assistance to obtain positive results from tripartite dialogue round tables in countries where they had been established.

The Worker member of the United States indicated that, while ILO member States increasingly ratified trade agreements which included commitments to honour ILO Conventions and declarations referring to them, the reluctance and ineffectiveness of governments to use ILO instruments to protect workers’ rights in the framework of international trade was still a cause of concern. Guatemala and the United States were two such governments. The CAFTA–DR had taken effect between the United States and Guatemala in 2006. The Agreement required the parties to recognize and protect freedom of association and other rights included in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. While the fact that the United States had not ratified most of the core Conventions at the heart of the Declaration was itself a problem. Guatemala had ratified, but persistently failed to comply with the Convention under discussion, but still continued to receive the trade benefits stemming from the CAFTA–DR. Last year, before the Conference Committee, information had been shared on the tortuously long seven-year path travelled by Guatemalan workers to begin the CAFTA–DR dispute resolution process. One year ago, the arbitration panel had heard arguments touching almost entirely on the Convention. Since the arbitration had begun, Guatemalan workers had experienced new delays. The initial dispute settlement panel report was now expected later this month, over eight years after the Government of the United States had received the workers’ petition. Guatemalan workers had documented many violations of the Convention, including union leaders being offered bribes to quit their jobs and to convince workers not to join unions; workers being fired for union affiliation or for not disbanding unions; non-enforcement of relevant laws; and a lack of investigations, prosecutions and punishment of the perpetrators of violations of freedom of association. Violations had continued while the petition had been under consideration. During the eight years that the petition had been pending, 61 trade union leaders and members had been murdered. The great majority of the perpetrators and all instigators of murders of trade union officers and members remained at large. The ILO had made clear on numerous occasions the connection between anti-union violence and the ability to exercise freedom of association. While the staff of the United States Trade Representative had suggested to leaders of the United States labour movement that murdering a trade unionist or perpetuating violence against a trade unionist did not violate the labour standards in the trade agreement with Guatemala, the ILO had long been clear on the matter. Anti-union violence was a violation of the Convention.

The Government member of the United States, referring to the information provided to the Committee by the Government representative, welcomed the Government’s new perspective and commitment to address the long-standing issues in this case. She was confident that the Government would provide the necessary resources and enforcement tools for the Ministry of Labour to implement the measures needed to protect workers from all forms of anti-union discrimination and to ensure full remedies under the law when such violations occurred. The serious issues in the case before the Committee had been well-documented and discussed for many years. The new procedures established by the Government to improve the investigation of murders of trade unionists had been noted. The establishment of those procedures was an important step, but she remained deeply concerned at the high degree of impunity that persisted. The Government was encouraged to strengthen the application of these procedures, continue and enhance cooperation with the CICIG and provide additional resources for the investigation and prosecution of violence and threats against trade unionists. The recent efforts by the Ministry of Labour to reduce the backlog of pending union registrations were welcomed. She looked forward to the institutionalization of efforts to produce systemic change to expedite the registration of unions and collective bargaining agreements in future. However, she was particularly concerned at the very low rate of union and collective bargaining agreement registration in the maquila sector and the recent challenges in the public sector. The fact that the Government had sought ILO support to better educate members of the judiciary about international labour standards was a positive step. However, to date, training had not yet translated into increased compliance with labour court orders for victims of anti-union dismissals. The Government was urged to give immediate attention to this matter and to take all necessary steps, including criminal prosecutions, to ensure full compliance with labour court orders, in particular reinstatement orders, within the legally established time frames. Similarly, Guatemala’s recent request for ILO technical assistance to develop legislation that addressed the recommendations of the ILO supervisory bodies was welcome. She looked forward to the expeditious introduction of legislative proposals to address the specific issues of non-compliance in law raised by the Committee of Experts, as well as a proposal to restore authority to the Ministry of Labour to impose sanctions directly. She urged the Government to take full advantage of ILO technical assistance and to seize the opportunity to ensure respect for workers’ rights in Guatemala by issuing additional legal instruments and introducing tangible improvements in labour law enforcement, and by allocating the necessary resources for that purpose.

The Worker member of Italy, recalling the repeated presence of the case before the Committee, as well as the high number of cases concerning Guatemala examined by the Committee on Freedom of Association, said that effective and real action had to be taken urgently. The figures for murders and violence against trade unionists were a shocking indictment of the situation faced by workers in Guatemala every day for over 25 years. In this sea of violence, the Government continued to be inactive, resulting in a worsening of the situation with regard to both criminal and labour law offences, for which there would never be convictions, while offenders benefited from impunity and the absence of the rule of law. The international labour community needed to act, as the rights enshrined in the Convention had been denied every day for over two decades. In conclusion, she called for: the appointment of a Commission of Inquiry with no further delay; the development by the office of the Public Prosecutor of an integrated investigation policy allowing a modernization of investigation techniques to be applied in cases of violence against trade unionists; major cooperation between the office of the Public Prosecutor and the CICIG to punish acts of violence against trade unionists; and a protection plan for worker victims of anti-union violence in order to ensure their personal integrity.

The Government member of the Dominican Republic said that her Government aligned itself with the statements by GRULAC and the Government of Panama. She expressed her support of the Ministry of Labour and recognized the Government’s willingness and efforts focused on achieving decent work, social dialogue and respect for freedom of association, in accordance with the commitments deriving from ILO Conventions. She requested ILO support for the work of the Conflict Resolution Committee so it could achieve positive results.

The Government representative reiterated that the Office of the Public Prosecutor had brought charges and initiated proceedings against the perpetrator of the murder of Mynor Rolando, and that the public authorities were determined to shed further light on the case and on the other cases of murder of trade unionists. Together with the trade union organizations, budgetary alternatives were being sought to ensure that the expenses were covered of officers in the National Civil Police who were assigned to protect individuals. Regarding collective agreements in the public sector, she recognized that the Government needed to overcome a series of challenges, but said that the social partners should adopt the same approach and contribute to developing a joint strategy to overcome the challenges. Corruption in Guatemala had also found its way into the trade union organizations, although it was not fitting that the actions of a few individuals should damage the entire trade union movement. She therefore invited the social partners to work together to find the right path for the good of the country, taking into account the reality of the current situation. She shared the concerns voiced by the Worker member of Guatemala regarding the very high level of violence in the country. However, violence was a historical issue, which could not be resolved overnight and needed to be addressed by everyone. She reiterated the Government’s total commitment combat impunity. Concerning the protocol for the protection of trade unionists, trade union organizations were fully aware that a technical round table had been set up with the Ministry of the Interior, at which months of discussions were being held on the content of the protocol. Although consensus had not been achieved owing to a lack of maturity and objectivity, the Government had decided that, despite certain disrespectful comments and attitudes on the part of the workers, it would keep the round table open in order to continue receiving the views of the workers. The Government had decided to decentralize the administrative procedures related to the registration of trade union organizations, thereby making the procedures easier for users and avoiding the unnecessary costs incurred by the intervention of third parties. Government procedures complied with the law at all times, which meant that the law applied to everyone equally. In that regard, the proceedings involving the dismissal of the trade unionist Erick Colmenares, initiated in 2014 under a previous government, had followed the appropriate judicial procedure, and had resulted in the authorization of the dismissal by the highest judicial body in Guatemala. She therefore requested the trade union organizations to support compliance with the law. With regard to the requested legislative reforms, she reiterated that the appointment of an expert to prepare a draft law was part of the technical assistance provided by the ILO. After having listed a number of initiatives that had been notified to the Tripartite Commission on International Labour Affairs, she gave the floor to the President of the Labour Commission of the Congress of Guatemala. The President of the Labour Commission said that there was political will in Congress to reform the national labour legislation and that his Commission was fully prepared to work with the Tripartite Commission and the ILO.

The Worker members emphasized that the new examination of the case of Guatemala was a result of the Government’s persistent failure to implement the conclusions adopted by the Committee and other ILO supervisory bodies. Guatemala remained one of the most dangerous countries in the world for trade unionists. The Governing Body had endeavoured to launch a constructive dialogue with the Government with a view to finding practical solutions to extremely serious violations. However, in reality serious violations were continuing without respite and without incurring any significant penalties, thereby creating a situation of virtual impunity. The Committee of Experts had reflected the seriousness of the situation in its comments and described the lack of progress as “tragic”. The Worker members would take every possible action, at the ILO and elsewhere, to bring an end to violence and impunity. They noted the Government’s indications concerning the small number of court judgments that had resulted in convictions or acquittals. However, it was unacceptable that all the perpetrators and instigators of the murders of 74 trade unionists were at liberty in a situation of total impunity. Furthermore, it was particularly worrying to hear that the anti-union motives for the murders were being questioned. By claiming that these crimes were due to the general climate of violence in the country, the Government was shirking its own responsibility and thus helped to perpetuate the situation of impunity. They emphasized that the Government had once again failed to take the necessary steps to amend the national legislation in order to bring it into line with Conventions Nos 87 and 98, further to the observations of the Committee of Experts. Guatemalan trade unions had put forward a series of proposed amendments to the legislation that were strictly in line with the recommendations of the Committee of Experts, but the proposals had been ignored. They welcomed the fact that a number of trade unions had finally been registered, but it was regrettable that little progress had been made towards removing the obstacles to registration. They also deplored the blatant attempts to stigmatize collective agreements in the public sector by holding the public sector workers responsible for the disastrous state of the economy and for the financial mismanagement of the national budget. Finally, they urged the Government to: provide rapid and effective protection for all trade union officers and members at risk, by increasing the budget allocated to protection programmes for trade unionists so that the latter were not obliged to cover the costs of their own protection; submit a bill to Congress by September 2016 at the latest, based on the comments of the Committee of Experts, to bring the national legislation into conformity with Conventions Nos 87 and 98; remove the various legislative obstacles to the freedom to establish trade unions and, in consultation with the social partners and with the support of the Special Representative of the Director-General of the ILO in Guatemala, review the procedure for processing applications for trade union registration; ensure large-scale dissemination in the media of the awareness-raising campaign on freedom of association; and bring an immediate end to the stigmatization and denigration through the same media channels of the collective agreements in force in the public sector.

The Employer members highlighted the significant progress made in the case, including the support that the ILO had provided to the Government to take positive measures to resolve disputes and the registration of new trade union organizations. However, there were still some problems to solve, such as the investigation, identification and prosecution of those responsible for the murder of trade unionists, risk studies for the protection of trade unionists and the adoption of legislative reforms. With regard to the legislative reforms, they expressed two reservations concerning the issues raised by the Committee of Experts. The first concerned the scope attributed to the Convention in relation to strikes. Recalling that the position of the Employers on this point had not changed, they did not support the request made for legislative reforms in this regard. The second reservation concerned the request by the Committee of Experts’ to remove the prohibition on foreigners or those who were not of Guatemalan origin from holding trade union office. In the view of the Employer members, the Government must have full sovereignty over whether or not to grant this right. In addition, they said that they wished to see progress in the coordination with the Conflict Resolution Committee through the appointment of a person who enjoyed the trust and recognition of the parties and could resolve the issues. They took note with interest of the mass awareness-raising campaign on freedom of association and collective bargaining. Recalling that the application of the Convention would be analysed by the Governing Body in November 2016, which meant that expectations of progress were extremely high, they emphasized that it was important for the Special Representative of the Director-General in Guatemala to be able to fulfil his mandate fully with the aim of strengthening social dialogue. They said that, on the basis of the above, the conclusions in the case should include the following elements: highlight the need for greater involvement of the public prosecution services in cases of trade unionists being murdered; encourage Congress to pass the relevant legislative reforms, with the reservations expressed above; take note of the public awareness-raising campaign and call for it to be undertaken more actively; encouraging the Conflict Resolution Committee to deliver positive results; and emphasize the need for the steps set out in the roadmap to be successfully implemented.

Conclusions

The Committee took note of the information provided by the Government representative, in the presence of Congress representatives, and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the national awareness-raising campaign on freedom of association which was being supported by the Special Representative of the Director-General.

Taking into account the discussion of the case, the Committee urged the Government to:

• - investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to determining responsibilities and punishing the perpetrators, taking the trade union activities of the victims fully into consideration in the investigations as one of the possible motives;
• - provide rapid and effective protection to all trade union leaders and members who are under threat, increasing the budget allocated to protection schemes for trade unionists so as to ensure that protected individuals do not personally have to bear any costs arising from those schemes;
• - submit to the Congress, before September 2016, a draft law related to the number of workers to constitute a trade union and the categories of workers in the public sector to ensure the conformity of national legislation with Convention No. 87;
• - eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the Director-General, review the handling of registration applications;
• - disseminate in the national mass media the campaign on freedom of association and collective bargaining supported by the Special Representative of the Director-General and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector;
• - continue to support the work of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining;
• - continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners.

The Government representative noted the Committee’s conclusions and reiterated her Government’s responsibility for and commitment to complying with ILO standards. It was important to work and coordinate with the social partners in an objective and mature manner in order to make progress in that regard.