Rapport définitif - Rapport No. 330, Mars 2003

Cas no 2194 (Guatemala) - Date de la plainte: 26-AVR. -02 - Clos

Allegations: The complainant objects to section 5 of Governmental Agreement 60-2002 which prevents collective bargaining with organizations of public employees with respect to salary increases, specific benefits or increases in existing benefits.

1. 782. The complaint is contained in a communication from the Trade Union Federation of Public Employees (FENASTEG) dated 26 April 2002. The Government sent its observations in a communication dated 30 December 2002 and 27 January 2003.
2. 783. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 784. In a communication dated 26 April 2002, the Trade Union Federation of Public Employees (FENASTEG) alleges that section 5 of Governmental Agreement 60-2002 dated 28 February 2002 violates the right to collective bargaining by including the following in the framework of “special budgetary measures for the 2002 financial exercise”:
2. General increases in salaries, expenses and representation costs: “the awarding of general increases in salaries, personal allowances, expenses and representation costs is suspended, as well as any other benefit which is wholly or partly funded by the State. Likewise, State bodies will refrain from agreeing to increase salaries, award specific bonuses or increase existing ones in negotiations under Collective Agreements for Working Conditions”.
3. B. The Government’s reply
4. 785. In its communications dated 30 December 2002 and 27 January 2003, the Government states that Government Decree 60-2002 is in line with the fact that the Government, in its policies for adjustment laid out in the economic programme submitted for 2002, as well as in negotiations with the International Monetary Fund, aims to achieve a proper administration of public spending, in order to comply with the responsibilities of the State as given in article 2 of the Political Constitution of the Republic, creating favourable conditions for a stable economy which will lead to a balanced financial situation, find a mechanism for increasing tax revenue, rationalize public spending, comply with the Peace Agreements and observe norms which encourage financial discipline in the budgets of state bodies. These are considered to be legitimate objectives and policies responding to the needs felt by all Guatemalans. Government Decree 60?2002 was the subject of an appeal to the Constitutional Court, which dismissed the allegation of unconstitutionality.
5. 786. Notwithstanding the aforementioned Government Decree, at the beginning of 2002 the Government approved a general 10 per cent pay raise for all private sector employees; furthermore, individual pay rises have been negotiated with some ministries, as was the case with the Ministry of Health, which negotiated a collective agreement on working conditions with salary increases acting retroactively from January 2002 and becoming effective in 2003; a similar negotiation took place with the unions in the Ministry of Labour and the Public Ministry, and with the Union of Employees of the Guatemalan Telecommunications Company and other decentralized institutions such as the National Electrification Institute, the Institute of Municipal Development and the Guatemalan Institute of Social Security, who all negotiated agreements in accordance with the funds available to them. Six collective agreements on working conditions were thus directly negotiated in 2002.

C. The Committee’s conclusions

1. 787. The Committee observes that, in the present case, the complainant objects to article 5 of Government Decree 60-2002 which prevents collective bargaining with organizations of public employees on matters relating to increasing salaries, awarding specific bonuses or increasing existing ones.
2. 788. The Committee takes note of the Government’s statements citing policies of adjustment in its economic programme for 2002 and negotiations with the International Monetary Fund in an attempt to establish a stable economy which will lead to a balanced financial situation and to achieve increased tax revenue, rationalize public spending and comply with the Peace Agreements. The Government also states that, notwithstanding this, six collective agreements were negotiated in the public sector in 2002.
3. 789. In this respect, the Committee wishes to recall that, on previous occasions, it has indicated that if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers’ living standards [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 882].
4. 790. The Committee observes that, in this regard, the Government states that the restrictions in question were limited to 2002, and that, in spite of Government Decree 60-2002, six collective agreements were negotiated in 2002.
5. 791. The Committee recalls that any limitation on collective bargaining on the part of the authorities should be preceded by consultations with the workers’ and employers’ organizations in an effort to obtain their agreement [see Digest, op. cit., para. 884] and expects that in future the public authorities will fully safeguard the right to collective bargaining in the public sector. Lastly, with regard to the negotiations with the International Monetary Fund which the Government cites in support of the limitations imposed on collective bargaining in 2002, the Committee recalls that “a State cannot use the argument that other commitments or agreements can justify the non-application of ratified ILO Conventions” [see Digest, op. cit., para. 13], particularly when Conventions concerning fundamental rights, such as the right to collective bargaining, are involved. The Committee requests the Government to take this principle into account when negotiating with international organizations.

The Committee's recommendations

1. 792. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls that any limitation on collective bargaining on the part of the authorities should be preceded by consultations with workers’ and employers’ organizations in an effort to obtain agreement from both and expects that in future the public authorities will fully safeguard the right to collective bargaining in the public sector.
   • (b) The Committee recalls that a State cannot use the argument that other commitments or agreements can justify the non?application of ratified ILO Conventions, particularly when Conventions concerning fundamental rights, such as the right to collective bargaining, are involved. It requests the Government to take this principle into account when negotiating with international organizations.