Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comment

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2023, relating to the discussions held in the Conference Committee on the Application of Standards (the Conference Committee) on the application of the Convention by Guatemala. The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2023, which relate to matters examined in the present comment. The Committee further notes the observations of the International Trade Union Confederation (ITUC), on the one hand, and of the Autonomous Popular Trade Union Movement, Global Unions of Guatemala, on the other, received on 27 and 29 September 2023, respectively, which also refer to matters examined in the present comment. The Committee notes the Government’s replies to the corresponding observations.

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion held in June 2023 in the Conference Committee on the application of the Convention by Guatemala. The Committee notes that the Conference Committee, after noting with deep concern the persistence of allegations of murders of trade unionists and other acts of anti-union violence, as well as the general situation of impunity that prevails in the country, urged the Government, in consultation with the social partners, to: take immediate measures to address the general situation of violence and intimidation, put an end to acts of violence and the threat thereof against trade union leaders and members; fully implement the road map adopted on 17 October 2013 without further delay, as well as any recommendations prepared by the ILO; investigate without delay all acts and threats of violence against trade union leaders and members to determine responsibilities, punish the perpetrators and identify the root causes of violence; provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes; adopt without delay the agreed amendments to eliminate legislative obstacles to the full exercise of freedom of association and develop legislation to allow for the formation of trade unions at the sectoral level; ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; and increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements.

Follow-up by the Governing Body of the progress achieved in the implementation of the ILO technical cooperation programme “ Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards ”

The Committee notes that for the third and final year, the Governing Body followed up at its session in October-November 2023 the action taken by the Office in the context of the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards (GB/349/INS/10(Rev.1)). The Committee recalls that the purpose of the action is to support the implementation of the road map on freedom of association adopted in 2013 by the Government of Guatemala. The Committee notes that on this occasion special attention was paid to the implementation of the priority actions identified by the joint mission undertaken by the ILO, IOE and ITUC in September 2022.

Presentation of a complaint under article 26 of the ILO Constitution

The Committee notes that, at its 349th Session, the Governing Body declared receivable a complaint made under article 26 of the ILO Constitution by various delegates to the 111th Session of the International Labour Conference alleging non-observance by Guatemala of this Convention and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the content of which will be examined by the Governing Body at its session in June 2024 (GB/349/INS/19/2).

Trade union rights and civil liberties

The Committee regrets to note that it has been examining since 2005 allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. In this regard, the Committee notes the examination by the Committee on Freedom of Association at its session in March 2023 of Case No. 2609 in relation to numerous murders and other acts of violence against members of the trade union movement.

The Committee notes the information provided by the Government concerning the status of the investigations and court proceedings relating to the murders of 98 members of the trade union movement between 2004 and 2022, according to which, up to now: (i) in 26 cases there have been a total of 37 sentences handed down (26 convictions, ten acquittals and one security and corrective measure); (ii) the criminal prosecutions in seven cases were terminated due to the deaths of the persons accused; (iii) in seven cases, arrest warrants have been issued and are being served; (iv) in one case, the hearings have begun, one is at an intermediary stage and one is at the stage of the public hearings; (v) ten cases are under investigation; and (vi) 46 cases have been shelved, in accordance with section 327 of the Code of Criminal Procedure, due to the material impossibility of identifying the perpetrators of the murders, although it is still possible that the cases will be reopened. The Committee notes that the Government adds that: (i) of the sentences, 15 were imposed on the perpetrators of the murders, three on the instigators and ten on both the perpetrators and the instigators; (ii) 14 of the 98 victims referred to were not members of the trade union movement, with two of those murders resulting in sentences being handed down; (iii) in none of the sentences referred to was an anti-union motive identified; (iv) since 1 January 2023, four new convictions have been handed down, and five acquittals; and (vi) the most recent procedures show a significant reduction in the period between the commission of the crime and the sentence being handed down. The Committee also notes the Government’s indication that the funding and resources available to the Office of the Public Prosecutor in general and to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists in particular have been increased substantially and that the results achieved show that there is no impunity in the country. The Government indicates in this regard that: (i) following its doubling between 2021 and 2022, the annual budget of the Office of the Special Prosecutor rose from US$1,288,252 in 2022 to US$1,539,774.51 in 2023; and (ii) while in 2017 there were only 64 municipal public prosecutors, the Office of the Public Prosecutor now has a presence in a total of 340 municipalities in the country. The Committee further notes the emphasis placed by the Government on regular contacts between the Office of the Public Prosecutor and the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) concerning progress in the related investigations, particularly through personal appearances by the Prosecutor-General.

The Committee further notes the information provided by the Government on the security measures adopted for members of the trade union movement who are at risk, according to which: (i) between 1 June 2022 and 15 January 2023, the Ministry of the Interior received 97 individual or collective applications for risk analyses (of which 58 were from the Office of the Public Prosecutor), with 128 protection measures being granted; (ii) the risk analyses are carried out immediately, within one week; (iii) the Ministry of the Interior is updating with workers’ representatives the Ministerial Decision on the unit for the analysis of attacks against trade union leaders and members to ensure that it is in line with the needs raised by the unions; and (iv) there are six canteens in the capital so that the meals of police officers are not at the expense of protected trade union members.

The Committee also notes that the ITUC regrets the murder of over 100 members of the trade union movement and deplores the fact that the Government attributes their murders to the general situation of violence in the country, thereby contributing to the persistence of the situation of impunity. The Committee also notes that the national trade union confederations: (i) hope that, in the case of the murder of Tomás Ochoa, Secretary-General of the Sitrabremen union, the Office of the Public Prosecutor will challenge, on the basis of the existing evidence, the decision by the court of first instance to find that the alleged instigators were not connected to the crime; and (ii) expect progress in the investigation of the murder in 2022 of Hugo Eduardo Gamero González, the disputes secretary of the SINEPORC union. The Committee also notes with deepconcern the references, during the discussion of the ILO technical cooperation programme for Guatemala in the Governing Body in October-November 2023, to the murder of Ms Doris Lisseth Aldana Calderón, leader of the SITRABI union, which occurred on 4 October 2023. The Committee notes in this regard the Government’s indications concerning the investigations carried out by the Office of the Public Prosecutor.

In light of the foregoing, while taking due note of the significant action that the Government is continuing to take, the results reported and the difficulties involved in shedding light on older murders, the Committee deeplyregrets to note that in the case of the great majority of the many murders of members of the trade union movement that have been reported there have not been any convictions and that in an even more limited number of cases the instigators of the murders have been identified and punished.

In this context, in the same way as the Committee on Freedom of Association in Case No. 2609, the Committee notes with deep concern the indication that 46 older cases of the murder of members of the trade union movement in which it has not been possible to identify the potential perpetrators have been shelved. Although it recognizes the particular difficulties involved in shedding light on older murder cases, the Committee emphasizes the importance, in cases involving anti-trade union violence, of investigations achieving specific results with reliable findings concerning the crimes committed, the motives for the crimes and those responsible so that the corresponding sanctions can be applied and action taken to avoid their recurrence in future. While welcoming the continuing increase in the budget allocated to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists and the regular contacts between the Office of the Public Prosecutor and the CNTRLLS on the subject of anti-union violence, the Committee once again urges the Government to continue taking and intensifying as a matter of urgency all the necessary measures to: (i) investigate all acts of violence against trade union leaders and members, with the objective of determining responsibilities and punishing both the perpetrators and instigators of these 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 in situations of risk so as to prevent any further acts of anti-union violence. In relation to the specific action required in this regard, the Committee refers to the recommendations made by the Committee on Freedom of Association in the context of Case No. 2609. The Committee requests the Government to continue providing all relevant information in this respect.

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 section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union;
• amend sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• amend section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike;
• amend sections 390(2) and 430 of the Penal Code and Decree No. 7186, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises;
• ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous comment, the Committee noted the new impetus given to the process of legislative reform by the joint mission by the ILO, IOE and ITUC in September 2022. In particular, the Committee noted that: (i) following the mission, the President of the Republic had submitted to the Congress of the Republic a Bill containing the texts which had received tripartite approval in March 2018 and September 2022 (Bill No. 6162) on the requirements for election to trade union office, compulsory arbitration in services that are not essential and other obstacles to the right to strike, the sanctions in the event of strikes set out in various legislative provisions and the application of the guarantees of the Convention to various categories of public workers; and (ii) on the basis of the guiding principles agreed in August 2018, bipartite and tripartite discussions with support from the Office would be held for the development of an agreed text of proposed reforms on sectoral unions and the conditions for strike ballots. The Committee regrets to note that, according to the information provided by the Government and the social partners, Bill No. 6162 has still not been adopted and that social dialogue has not been resumed on sectoral unions and the conditions for strike ballots. In this regard, the Committee once again emphasizes the importance of amending section 215(c) of the Labour Code, which establishes membership requirements for the establishment of sectoral unions that are contrary to Article 2 of the Convention. In a context that is characterized, on the one hand, by a large number of small enterprises and, on the other, legislation that requires a minimum of 20 workers to establish a union, the excessive membership requirements established for the creation of sectoral unions has the effect of excluding a large number of workers from being able to exercise their right to organize. In light of the foregoing, the Committee once again urges the Government to, in consultation with the social partners, take the necessary measures to bring the national legislation into conformity with the Convention. The Committee firmly expects to be able to note tangible progress in this regardin the near future and recalls the availability of the Office to provide the necessary technical assistance.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee noted the persistent differences between the indications provided by the Government and the trade unions concerning the process of the registration of unions by the labour administration. The Committee took specific note of the allegations by unions concerning the role reported to be attributed to the employer in the registration process. The Committee also notes the Government’s indication that: (i) 2,579 unions are registered (749 in the public sector, 901 in the private sector and 929 in the self-employed sector); (ii) 34 applications for the registration of unions were received in 2022, and 25 organizations were registered; and (iii) 16 applications for the registration of unions were received between 1 January and 6 July 2023, with eight organizations being registered.

The Committee notes the further indications by the Government that: (i) the law does not require the labour administration to inform the employer when applications for registration are received; (ii) the authorities in Guatemala respect the principle of non-interference by employers in the establishment and operation of unions as set out in Article 2 of Convention No. 98; (iii) at the time of its publication in the Official Journal, information on the registration of a union becomes public and, in accordance with section 275 of the Labour Code, the decisions of the Ministry of Labour and Social Welfare can be challenged through administrative appeals; and (iv) in 2021 and 2022, nine decisions to register trade unions were challenged through appeals lodged by employers, with three appeals being set aside, one rejected as being out of time and five awaiting a decision.

The Committee notes the indication by the ITUC that trade unions continue to complain of challenges by employers against the registration of unions, the denial of registration and delays by the labour administration in updating lists of trade union members.

The Committee takes due note of these various elements. The Committee requests the Government to continue providing statistical information on the registration of trade unions, including the grounds for refusals of registration and to maintain an open dialogue with trade union confederations on administrative practice in this respect. With reference to appeals by employers against registration decisions, the Committee requests the Government to indicate: (i) the grounds given for the appeals; (ii) whether the filing of an appeal has the effect of suspending registration; and (iii) whether the employer has access to the identity of the members of the union that has just been registered.

Campaign on freedom of association. The Committee notes the Government’s indication that: (i) at the beginning of 2023, materials were disseminated on freedom of association in 35 municipalities in the country; (ii) an awareness-raising campaign on freedom of association continued to be carried out through media with broad circulation, reaching around 7,500 readers of the Official Journal, 66,876 users of social networks and 432,000 readers of a broadly read outlet. The Committee notes these initiatives with interest and encourages the Government to: (i) continue the awareness-raising campaign in media with broad circulation; and (ii) take measures for the awareness-raising campaign to reach sectors characterized by a very low unionization rate, such as agriculture and the maquila. The Committee requests the Government to provide information in this regard.

Noting with concern the persistence of serious violations of the Convention, the Committee urges the Government, with the technical assistance of the Office, to intensify its efforts to overcome the legislative and practical difficulties examined in the present comment.

The Committee is raising other matters in a request addressed directly to the Government.