Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

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

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The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) received on 1 September 2024, as well as the observations of the International Trade Union Confederation (ITUC) received on 17 September 2024, referring to matters examined in the present comment.

Complaint under article 26 of the ILO Constitution

The Committee notes that, at its 351st and 352nd Sessions, the Governing Body received a complaint concerning non-observance by Guatemala of this Convention and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), presented under article 26 of the ILO Constitution by various worker delegates to the International Labour Conference in June 2023. After recognizing at its 351st Session the commitment of the new Government to overcome the legislative and practical difficulties in the application of Conventions Nos 87 and 98, the Governing Body at its 352nd Session deferred to its 353rd Session (March 2025) the decision to consider further action in respect of the article 26 complaint (document GB.352/INS/13(Rev.1)).

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 situation of impunity. In this regard, the Committee notes the examination by the Committee on Freedom of Association at its session in June 2024 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 100 members of the trade union movement between 2004 and 2024, according to which, up to now: (i) in 27 cases there have been sentences handed down (21 convictions, 5 acquittals and 1 security and corrective measure); (ii) the criminal prosecutions in 6 cases were terminated due to the deaths of the persons accused; (iii) in 7 cases, arrest warrants have been issued and are still to be served; (iv) in 1 case, the hearings have begun, 1 is at an intermediary stage and one is at the stage of the public oral hearings; (v) 7 cases are at the investigation stage; and (vi) 49 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. With respect to these data, the Committee notes the Government’s indication that the number of sentences and other stages of proceedings are on a par with the previous year.

The Committee also notes the Government’s indication that the capacities of the Investigation Unit for Crimes against Judicial Officials and Trade Unionists have been strengthened through a budget increase from US$543,960 in 2021 to US$1.7 million in 2024. The Committee also notes the Government’s indication that the time needed to complete investigations and obtain convictions has been shortened from an average of three years to one year and nine months.

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: (i) between January and July 2024, 71 protection measures were granted; (ii) the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) has set dates in 2024 to meet with the judiciary and the Ministry of the Interior; and (iii) the trade union technical working group of the Ministry of the Interior has been reactivated with the most representative trade union leaders and members of the Autonomous Popular Trade Union Movement of Guatemala, with a meeting held in July 2024 and another scheduled for September 2024.

At the same time, the Committee notes that the ITUC: (i) reports the persistence in law and practice of serious violations of the Convention; (ii) deeply regrets the murder in October 2023 of Doris Lisseth Aldana Calderón, of the Izabal Banana Workers’ Union (SITRABI); and (iii) expresses once again its deep concern regarding the anti-union killings and other acts of violence related to the trade union activities of the victims, as well as the climate of widespread impunity in the country. The Committee notes with deep concern that the Government reports the murder of Anastacio Tzib Caal, a trade union leader, on 15 June 2024.

The Committee also notes with deep concern that, during discussions held at the 352nd Session of the Governing Body on the complaint presented against the Government of Guatemala under article 26 of the ILO Constitution, the Worker spokesperson denounced the murders of six leaders and members of the trade union movement in 2024.

In light of the above, while taking due note of the action that the Government is continuing to take, the Committee firstly expresses its deep concern at the allegations of the murders of six leaders and members of the trade union movement that have occurred since 1 January 2024. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected. The Committee therefore urges the Government to take, in coordination with all the competent authorities and in close consultation with the trade union movement, the necessary steps to increase the effectiveness of measures to prevent anti-union violence and to protect members of the trade union movement who are at risk, in order to prevent new loss of human lives. The Committee requests the Government to provide detailed information on this subject.

In relation to the investigation and penalizing of the numerous murders of members of the trade union movement since 2004, while welcoming the steady increase in the budget allocated to the Special Investigation Unit for Crimes against Judicial Officials and Trade Unionists, the Committee notes with deep concern that: (i) there have been no further convictions and no significant progress in the proceedings since the previous year; and (ii) the great majority of the many murders of members of the trade union movement that have been reported remain without convictions and only in a very limited number of cases have the instigators of the murders been identified and punished.

The Committee once again 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. The Committee therefore once again urges the Government to intensify, as a matter of utmost urgency, all necessary measures to investigate all acts of violence against trade union leaders and members with a view to promptly determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations. 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 and requests the Government to explore the possibility of receiving, with the support of the Office, the technical assistance of public prosecutors’ offices of other ILO Member States. 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. 71-86, 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 that, according to the information provided by the Government and the social partners, Bill No. 6162 had still not been adopted. The Committee notes the information sent by the Government on meetings between the CNTRLLS and the Parliamentary Labour Commission on 19 March and 26 June 2024 to further promote the above-mentioned Bill.

The Committee notes with regret, however, that Bill No. 6162 has still not been adopted and reiterates the importance of necessary legislative reforms to give full effect to the application of the Convention. In light of the foregoing, the Committee once again urges the Government, in consultation with the social partners, to take the necessary measures to bring the national legislation into conformity with the Convention. The Committee firmly expects to be able to note substantial progress in this regard in 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 comment, the Committee requested the Government to continue providing data on the registration of trade unions, including the grounds for refusals of registration. In this respect, the Committee notes the Government’s indication that in 2023: (i) 89 applications for trade union registration were received, 44 of those were registered and 1 was rejected; (ii) in 2024 (as at 26 June) 28 applications for trade union registration were received, and in this same period, 27 trade unions were registered and 7 others were refused; and (iii) the grounds for refusing registration consisted of unmet requirements in the submission of applications, including those established in sections 216, 218, 219, 220, 221 and 222 of the Labour Code on the minimum number of workers to form a trade union.

The Committee also notes the receipt by the Government of software for the registration of trade unions, which is still to be implemented. The Committee also takes due note that, according to document GB.352/INS/13(Rev.1) submitted to the Governing Body at its session of October–November 2024, the new trade union booklet, which explains the requirements and the process for establishing trade unions, was approved on 6 September 2024 following consultation with the social partners.

With respect to the legal challenge to the registration of trade unions by employers before the labour administration, a practice criticized by the workers’ organizations, the Committee requested the Government to provide information on: (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. The Committee also notes the Government’s indication that: (i) in 2023, 19 appeals or challenges were brought by employers, as well as by members of other trade unions or the workers themselves, the grounds for the appeals being, inter alia, the fact that certain founding members were workers occupying positions of trust and that certain persons were no longer workers of the enterprise; (ii) the filing of an appeal indeed has the effect of suspending the registration of a trade union; and (iii) the employer has no access to the identity of the members of a union that has just been registered.

The Committee notes these various points. It notes the persistence of a high number of applications for trade union registration that do not seem to be processed in a reasonable time (from 1 January 2023 to 24 June 2024, 117 applications for registration resulted in 71 accepted and 8 rejected, and therefore 38 cases remain undecided). The Committee also notes the latest examination, in March 2024, of Case No. 3042 by the Committee on Freedom of Association, relating to the high number of registration refusals, most of which occurred between 2012 and 2016, and in which regard the Committee on Freedom of Association referred the legislative aspects to this Committee. The Committee notes that the Committee on Freedom of Association, after noting the legislative drafts adopted by the Government to streamline the registration process, also noted that substantive legislative and institutional difficulties remain that could significantly restrict the exercise of freedom of association (inability to establish sectoral unions under the requirements of section 215(c) of the Labour Code; obstacles to the registration of organizations affiliating workers employed by the public administration on the basis of civil contracts; impact of workers considered to be occupying positions of trust on the registration process; and access by unregistered trade unions to effective remedies). The Committee lastly notes that the suspensive effect of an administrative appeal filed by the employer against the registration of a trade union may obstruct the exercise of freedom of association. In light of the above, while welcoming the approval of the trade union booklet that was subject to consultation with the social partners, the Committee requests the Government to continue to ensure that the issues surrounding the registration of trade union organizations are regularly monitored and submitted for consultation with the representative national federations, and addressed in a tripartite dialogue in the CNTRLLS. The Committee also requests the Government to take the necessary measures, in consultation with the social partners, to: (i) resolve the legislative and institutional difficulties identified by the Committee on Freedom of Association in Case No. 3042; and (ii) remove the suspensive effect of the administrative appeal filed by the employer against trade union registration. The Committee requests the Government to provide information in this regard and to continue to provide data on the number of registrations requested and granted.

Awareness-raising campaign on freedom of association. The Committee notes that the Government has provided information on the scope of the awareness-raising campaign on freedom of association widely disseminated on social media networks, including publications in Kaqchikel. The Committee welcomes these initiatives and requests the Government to: (i) intensify the dissemination of information regarding the above campaign; and (ii) take measures to ensure that the campaign reaches sectors with the lowest trade union membership rates in the country, such as the agricultural and rural sector, and the maquila sector.

While duly noting the efforts made by the Government, the Committee notes with concern the persistence of serious violations of the Convention. The Committee urges the Government, with the participation of the CNTRLLS and with ILO technical assistance, to intensify its efforts to overcome the legislative and practical difficulties examined in the present comment, and hopes to be able to note substantial progress in the near future.

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

[The Government is asked to reply in full to the present comments in 2025].