Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations received on 1 September 2016 submitted, respectively, by the: (i) International Trade Union Confederation (ITUC); (ii) Autonomous Popular and Trade Union Movement of Guatemala; and (iii) the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG). The Committee notes that these observations refer to matters examined in its present comment and also to denunciations of violations in practice on which the Committee requests the Government to provide its comments. The Committee also notes the joint observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2016, referring to matters examined by the Committee in the present observation. Finally, the Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature.

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

The Committee notes that at its 328th Session (October–November 2016), the Governing Body decided to defer consideration until its 329th Session (March 2017) of the decision to establish a Commission of Inquiry to examine the complaint submitted under article 26 of the ILO Constitution by various Worker delegates to the 101st Session of the International Labour Conference (May–June 2012) concerning non-observance of the Convention by Guatemala. The Committee notes that the Governing Body took special note of the submission to the Congress of the Republic, on 27 October 2016, of two draft legislative initiatives, one relating to freedom of association, and that the Governing Body expressed the firm expectation that it would be informed before its 329th Session (March 2017) of the passage into law of legislation that is fully in conformity with the conclusions and recommendations of the ILO supervisory system and the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 on the application of the Convention by Guatemala. The Committee notes in particular that the Conference Committee urged the Government to: (i) 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; (ii) 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 out of those schemes; (iii) submit to the Congress, before September 2016, a draft law respecting the number of workers required to constitute a trade union and the categories of workers in the public sector to ensure the conformity of national legislation with the Convention; (iv) 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 ILO Director-General, review the handling of registration applications; (v) disseminate in the national mass media the campaign on freedom of association and collective bargaining supported by the Special Representative of the ILO Director-General, and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector; (vi) 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; and (vii) continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners.

Trade union rights and civil liberties

The Committee regrets that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders and the related situation of impunity. The Committee notes the Government’s indication that: (i) up to now, there have been 14 rulings on the over 70 cases of murder brought before the Committee on Freedom of Association of the International Labour Organization, 11 of which were convictions; (ii) the Office of the Public Prosecutor and the courts have found that the motive for the violent murders subject to these 11 convictions was not based on trade union activity or the defence of the labour rights of the victims; (iii) the perpetrators of the attempted murder of trade unionist Cruz Telón were convicted on 25 April 2016 for attempted murder and robbery with violence; (iv) the Office of the Public Prosecutor, through the Special Investigation Unit for Crimes Against Trade Unionists, has made significant progress in the investigation of another two cases (the murders of José Ricardo Morataya Lemus and Bruno Ernesto Figueroa, in which cases rulings have not yet been handed down); (v) the Trade Union Committee of the Office of the Public Prosecutor is continuing to meet regularly, with the participation on a monthly basis of trade unions, the Office of the Public Prosecutor, the Ministry of Labour and the Special Representative of the ILO Director-General; (vi)  collaboration is continuing with the International Commission Against Impunity in Guatemala (CICIG) relating to the investigation of a list of 12 murders selected by the trade union movement; (vii) the Special Investigation Unit for Crimes Against Trade Unionists has been restructured and is now composed of two agencies; (viii) during the first half of 2016, the Ministry of the Interior granted two personal security measures and 24 security measures covering specific locations for trade union members; (ix) on 18 August 2016, the authorities of the Ministry of the Interior reached agreement with trade union representatives on a draft Protocol for the implementation of immediate and preventive security measures for trade union members; (x) the emergency telephone number 1543 continues to operate for the denunciation of acts of violence or threats against trade union members and human rights defenders; and (xi) in June 2016, a special bonus of 700 Guatemalan quetzals (GTQ) a month was authorized for officers of the National Civil Police so that protected persons do not have to personally cover any cost in that regard. The Committee also notes that, within the framework of the examination by the Governing Body of the complaint made under article 26 of the ILO Constitution, the Government reported the capture and prosecution of the alleged murderer of Brenda Marleni Estrada Tambito, trade union adviser to the Trade Union of Workers of Guatemala (UNSITRAGUA-Historic), who was murdered in June 2016.

The Committee notes that the various national trade union organizations and the ITUC: (i) denounce the persistence of many attacks and threats against members of the trade union movement; (ii) denounce the absence of specific progress in the investigation of the 75 murders of trade union members and the conviction of their murderers; and (iii) particularly regret the absence of convictions or significant progress in the investigation of murders in which evidence of a possible anti-union motive has already been identified. In this connection, the Committee notes that the Autonomous Popular Trade Union Movement of Guatemala indicates that collaboration with the CICIG in relation to 12 murders corroborates the existence of clear evidence relating the murders with the trade union activities of the victims. The representatives of the trade union confederations nevertheless regret that, despite the above, there is still much to do to shed full light on these crimes. The Committee further notes the six-monthly report on acts of violence against trade unionists for January–June 2016, prepared by the Network of Labour Rights Defenders of Guatemala and forwarded by the ITUC. According to this report, 11 threats against trade union members, five physical attacks, including two murders (the death on 24 February 2016 of Silvia Marina Calderón Uribio, member of the Union of Workers of the National Committee for Alphabetization (SITRACONALFA), and the death on 19 June 2016 of Brenda Marleni Estrada Tambito, legal adviser to UNSITRAGUA-Historic) have been recorded during the first half of 2016. The Committee notes the emphasis placed by the CACIF on the persistence of the general climate of violence affecting the country, which is accompanied by a high level of impunity (of the over 20,000 murders in the country in 2012, only 12.77 per cent of cases resulted in a conviction). The CACIF indicates that, although these figures are not an excuse for failing to make progress in the investigation of the violent deaths of trade unionists, they do illustrate the general inefficiency of the application of justice in Guatemala.

The Committee notes with deep concern the persistent allegations of acts of anti-union violence, including physical aggression and murders. While taking due note of the results achieved by the Office of the Public Prosecutor in the investigation of the latest murder of a member of the trade union movement which occurred in June 2016, the Committee regrets that it is once again bound to note the overall absence of progress in combating impunity. In the same way as the Committee on Freedom of Association in the context of Case No. 2609 (378th Report, paragraphs 272–325), the Committee expresses its particular concern at the lack of progress in the investigations of murders in which evidence has already been found of a possible anti-union motive. In light of the above, the Committee firmly urges the Government to intensify its efforts to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking fully into consideration in the investigations the trade union activities of the victims; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. In particular, the Committee urges the Government to intensify its efforts to: (i) allocate additional financial and human resources to the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor; (ii) develop the collaboration initiated between the Office of the Public Prosecutor and the CICIG; (iii) establish special courts to deal more rapidly with crimes and offences committed against members of the trade union movement; and (iv) increase the budget for protection programmes for members of the trade union movement. The Committee requests the Government to continue providing information on all of the measures adopted and the results achieved in this regard.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to amend several legislative provisions.

In this regard, the Committee notes that the Government has provided a copy of a Bill which seeks to bring legislation into conformity with the Convention and which was submitted to the Congress of the Republic on 27 October 2016.

The Committee observes with interest that the Bill addresses the Committee’s previous comments in relation to:

• -the minimum membership requirements set out in section 215(c) of the Labour Code for sectoral trade unions – by replacing the current requirement to affiliate 50 per cent plus one of those working in the sector, with a 90 members minimum membership requirement;
• -the restrictions for election as trade union leader – by allowing up to one-third of the union’s executive committee to be composed of foreign nationals, and by allowing, in the same proportion, that former employees of the enterprise, guild or sector of the union concerned be designated by the union’s executive committee;
• -the majority required to call a strike – by replacing the requirement of a majority of all workers in the enterprise, with a requirement of the majority of the workers present at the assembly specially convoked for the strike ballot;
• -the imposition of compulsory arbitration in non-essential services in the strict sense of the term – by eliminating such imposition through the amendments of section 4(d) of the Act on Unionization and the Regulation of Strikes of Public Employees (Decree No. 71-86, as amended by Legislative Decree No. 35-96; and
• -the prohibition of solidarity strikes – by eliminating such prohibition through the amendment of section 4(d) of the Act on Unionization and the Regulation of Strikes of Public Employees.

However, the Committee regrets to note that the provisions of the Bill amending sections 390(2) and 430 of the Penal Code do not resolve the difficulties raised by the Committee in its previous comments. In this respect, the Committee notes that the Bill’s proposal revise section 390(2) of the Penal Code imposes imprisonment penalties from one to five years to persons who “carry out acts that result in sabotage, damage or destruction of private property of an enterprise or a public institution, affecting their production or service”. The Committee observes that the large breadth of such formulation retains the risk of imposing penal sanctions on workers carrying out a peaceful strike. The Committee further notes the Bill does not address the Committee’s concerns as to section 430 of the Penal Code, inasmuch as the amended formulation on the Bill sets out that “civil servants, public employees and employees or dependants of a public service enterprise who abandon their post, work or service, will be liable to imprisonment for a term of six months to two years” and that this sanction will be doubled for the leaders, promoters, or organizers of the massive abandonment or if the abandonment results in damage to the public interest. In this regard, the Committee recalls that no penal sanctions should be imposed with respect to carrying out a peaceful strike and that such sanctions should only be permissible where violence against persons or property, or other serious infringements of penal law have been committed.

Finally, the Committee regrets that the Bill does not include measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In the light of the above, the Committee trusts that all the legislative amendment it has requested for many years will be adopted in the near future in accordance with all the Committee’s comments. While welcoming the progress contained in the Bill submitted by the Government, the Committee emphasizes the importance of the Government having recourse as soon as possible to the technical assistance of the Office to ensure that the Bill that is adopted is in full compliance with the guarantees of the Convention. The Committee requests the Government to provide information in this respect.

Application of the Convention in practice

Registration of trade unions. In its previous comment, the Committee expressed deep concern at the obstacles to the registration of trade unions noted by the Committee on Freedom of Association within the framework of Case No. 3042. In this regard, the Committee notes the Government’s indication that: (i) there was a significant increase in the registration of trade unions during 2015 (52 registrations) and the first half of 2016 (76 registrations between January and July); (ii) a draft Government Decision to reduce the time required for the registration of trade unions was submitted on 8 September 2016 by the Ministry of Labour and Social Welfare to the Tripartite Committee on International Labour Affairs; and (iii) the submission of the Bill resulted in complete rejection by the workers, thereby preventing genuine consultations. The Committee also notes that both the Autonomous Popular Trade Union Movement of Guatemala and the MSICG continue to denounce cases of hindrance in the registration of trade unions. In light of the above, the Committee requests the Government to continue to have recourse to the technical assistance of the Office in order to pursue more in-depth dialogue with the trade unions on the reform of the registration procedure. The Committee also requests the Government to continue providing information on the number of registrations requested and those recorded.

Conflict resolution on freedom of association and collective bargaining

Settlement of disputes relating to freedom of association and collective bargaining. In its previous comment, the Committee invited the Government to continue strengthening the Conflict Resolution Committee on Freedom of Association and Collective Bargaining (hereinafter the Conflict Resolution Committee). In this regard, the Committee notes that: (i) the Government has provided information on the activities of the Conflict Resolution Committee indicating that progress has been achieved in certain aspects of two cases that are before the Committee on Freedom of Association; (ii) the Autonomous Popular Trade Union Movement of Guatemala indicates that the Conflict Resolution Committee has achieved very limited results, with the partial settlement of a single case, and considers that the terms of reference and operation of the Conflict Resolution Committee need to be reviewed; and (iii) the CACIF emphasizes that only four cases examined by the Conflict Resolution Committee are related to the private sector. In light of the above, and with a view to reinforcing the effectiveness and impact of the Conflict Resolution Committee, the Committee requests the Government to undertake, in consultation with the social partners and with the support of the Office of the Special Representative of the ILO Director General, an evaluation of the terms of reference and operation of the Conflict Resolution Committee. Noting the reiterated observations by trade unions alleging a complete absence of judicial protection for freedom of association, the Committee calls for the inclusion in this evaluation of an examination of the complementarity between the Conflict Resolution Committee and the judicial mechanisms for the protection of freedom of association in the country, together with an analysis of their effectiveness.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comment, and in light of the commitments made by the Government in the 2013 roadmap, the Committee invited the Government to disseminate in the national mass media the awareness-raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office. In this regard, the Committee notes the Government’s indication that: (i) a communication plan has been prepared to pursue the campaign initiated the previous year; (ii) the campaign has been disseminated in the governmental mass media with the support of 13 ministries and other public institutions; and (iii) a workshop on international labour standards for managers of the media, columnists and opinion-formers, especially focusing on freedom of association and collective bargaining, was held on 27 October 2016 jointly with the Office of the ILO Special Representative of the Director-General. The Committee also notes that the various trade unions consider that there is no campaign to promote freedom of association and that, on the contrary, since the middle of 2015, the public authorities have been carrying out, with the support of the mass media, a very aggressive campaign against trade unionism and collective bargaining in the public sector. Expressing its concern at the allegations made by the trade unions, especially in a context marked by frequent acts of anti-union violence, the Committee considers that these allegations make it even more necessary to disseminate broadly in the national mass media the awareness raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office. The Committee therefore once again requests the Government to provide information on the action taken to carry out such broad dissemination.

The maquila sector. For many years, the Committee has been requesting the Government to intensify its efforts to promote and guarantee full respect for trade union rights in the maquila sector. In this connection, the Committee notes the Government’s indication that, on the basis of a specific operational plan, the labour inspectorate carried out inspections of 88 enterprises in the maquila sector in 2015, focusing on the payment of the minimum wage. The Government also reports the reactivation in June 2016 of the coordinating unit for the apparel and textile sector. While noting this information, the Committee regrets to note that the Government has not reported any initiative related specifically to the exercise of freedom of association in the sector. Recalling that for many years it has been receiving allegations of violations of freedom of association in the maquila sector and that the impossibility to exercise freedom of association in the sector was one of the five elements contained in the complaint made in 2012 under article 26 of the ILO Constitution, the Committee once again requests the Government to: (i) take specific measures to promote and guarantee full compliance with trade union rights in the maquila sector; (ii) accord special attention to the maquila sector in the context of the awareness-raising campaign; and (iii) report on the exercise in practice of trade union rights in the maquila sector, with an indication of the number of active trade unions and workers who are members of those unions.

The Committee once again trusts that the Government will take all the necessary measures to resolve the serious violations of the Convention noted by the ILO supervisory bodies and that it will take full advantage of the technical assistance made available to the country by the Office, as well as the resources available through international cooperation, including within the context of the project funded by the Directorate General for Trade of the European Commission.