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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Guatemala (Ratification: 1952)

The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and of the International Trade Union Confederation (ITUC) received respectively on 30 August 2024 and on 17 September 2024, referring to matters examined in the present comment. The Committee also notes that the observations of the International Trade Union Confederation (ITUC) concerning the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), received on 17 September 2024 contain allegations of acts of anti-union discrimination and obstruction of collective bargaining in a garment factory. The Committee requests the Government to provide its comments in this respect.

Submission of a complaint under article 26 of the ILO Constitution

The Committee notes that, at its 351st and 352nd Sessions, the Governing Body examined a complaint concerning non-observance by the Government of Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the present Convention, submitted under article 26 of the ILO Constitution by several Workers’ delegates to the International Labour Conference in June 2023. After having recognized at its 351st Session, the new Government’s commitment 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 it 353rd Session (March 2025) the decision to consider further action in respect of the article 26 complaint (document GB/352/INS/13).

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the labour inspection services. In its previous comments, the Committee requested the Government to provide information on the number and type of penalties imposed by the General Labour Inspectorate in trade union matters. The Committee notes the Government’s indication that from 1 January to 24 August 2023, 30 complaints were filed, containing reports of 15 infringements of trade union rights, with 14 penalties imposed, amounting to 287,598.92 Guatemalan quetzales (approximately US$37,101.00). The Committee takes due note of this information and requests the Government to continue to provide data on the number and type of penalties imposed by the General Labour Inspectorate in trade union matters.

Effective judicial proceedings. In its previous comments, the Committee requested the Government to continue to intensify efforts to ensure compliance with the reinstatement orders of dismissed trade unionists, taking into account the guidance established in the Diagnostic Study prepared by the Office. The Committee also urged the Government to take the necessary measures to adopt the new procedural rules so that all cases of anti-union discrimination are examined by the courts in summary proceedings and that the respective court rulings are implemented as soon as possible. The Committee notes the Government’s indication that: (i) on 30 April 2024, the Office presented the “Diagnostic Study on the mechanisms for enforcing reinstatement orders in cases of dismissal of trade unionists in Guatemala” to employer, worker and Government representatives, with the participation of representatives of the Public Prosecutor’s Office, the Constitutional Court and the Supreme Court of Justice, in which several recommendations were made, which were taken into account by the Government; (ii) since it was established in 2024, the Collegial Peace Court in Criminal Matters, which hears cases involving non-compliance with labour decisions, has received 380 cases (166 from the public sector, 42 from the municipalities and 124 from the private sector), of which 101 have been resolved, 154 are ongoing and 84 are under investigation; and (iii) in 2021, 2,401 reinstatements were undertaken, 727 of which were successful. The Committee also notes that the Government: (i) adds that reinstatement orders are frequently rejected and subsequently challenged through constitutional actions of amparo and appeal, with the average time being approximately two years for the first and second instance, and about 18 more months for the constitutional action of amparo and the implementation phase; (ii) clarifies that eight cases were reported in 2023 associated with dismissals of members of a trade union in the process of being established or with dismissals of members of a trade union governing board; and (iii) states that Bill No. 5809, proposing a Labour and Social Security Procedural Code gave rise to an unfavourable opinion of the Justice Reform Commission of Congress, and is pending the opinion of the Labour Commission. While welcoming the outcome reached by the Collegial Peace Court in Criminal Matters in penalizing public and private officials who have refused to carry out reinstatement decisions, the Committee notes that, as stated in the Office’s above-mentioned Diagnostic Study, the effectiveness of judicial protection against acts of anti-union discrimination requires the adoption of a series of measures to shorten the deadlines for decisions, avoid an abusive multiplication of appeals and effectively enforce judgments. In this regard, the Committee notes that the Committee on Freedom of Association has referred to the legislative aspects of Case No. 3062 (see 408th Report, October 2024, Case No. 3062), in which the Committee trusts that, in consultation with the social partners, the necessary procedural rules are adopted to ensure that all cases of alleged anti-union discrimination are examined by the courts expeditiously, and that the relevant court decisions are enforced without delay. The Committee therefore requests the Government to further intensify its current efforts to ensure compliance with reinstatement orders, taking due account of the guidance set out in the Diagnostic Study developed by the Office. In addition, the Committee once again urges the Government to, in consultation with the social partners, take the necessary measures to adopt new procedural rules so that all cases of anti-union discrimination are examined by the courts in summary proceedings, and that the respective court rulings are implemented as soon as possible.The Committee requests the Government to provide information on any progress made in this respect and to continue to provide statistics on the specific results achieved by the new judicial body in terms of compliance with and the execution of reinstatement orders.

Article 4. Promotion of collective bargaining in the private sector. Possibility of bargaining at all levels. In its previous comments, the Committee noted with regret the very low number of collective agreements signed and adopted in the country. The Committee also noted that section 215(c) of the Labour Code, which requires at least 50 per cent membership in a particular sector to be able to establish an industry union, had the effect of preventing any collective bargaining at the sectoral level. The Committee notes the information provided by the Government in its report on Convention No. 87, according to which the Subcommittee on Legislation and Labour Policy of the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) requested ILO technical assistance to facilitate the tripartite discussion relating to industry unions and sectoral bargaining. The Committee also notes the Government’s information that in 2023, 15 collective agreements on working conditions were signed, and between 1 January and 20 August 2024, 18 agreements were signed (covering both the private and the public sectors). Recalling that collective bargaining should be possible at all levels, the Committee regrets to note the lack of progress in legislative reforms to allow for collective bargaining at the sectoral level. The Committee once again urges the Government to, in consultation with the social partners, take the necessary measures to reform 215(c) of the Labour Code, and hopes that the technical assistance of the Office, referred to by the Government, will enable it to report on the measures taken to promote collective bargaining in the private sector.

Approval of collective agreements in the private sector. The Committee notes the Government’s indication that it has submitted for consultation with the social partners draft regulations on the approval and denunciation of concluded collective agreements on conditions in the private sector. Recalling that: (i) approval of collective agreements is compatible with the Convention on condition that refusal of approval is restricted to cases in which the collective agreement contains flaws regarding its form or does not comply with the minimum standards laid down by the general labour legislation; and (ii) this formality must be as streamlined as possible, the Committee hopes that the proposed regulations formulated by the Government to regulate approval of collective agreements, will make a full contribution to the promotion of free and voluntary collective bargaining in the private sector.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In its previous requests, the Committee requested the Government to carry out broad consultations with the unions concerned with a view to evaluating and guaranteeing, in the specific context of the public administration, the conformity of the approval procedure for collective agreements with the principle of free and voluntary collective bargaining, and identifying the reforms necessary to ensure that collective bargaining in the public sector is based on a clear and balanced regulatory framework. The Committee notes the Government’s indications that: (i) since 2019, discussions have been held in the Subcommittee on Legislation and Labour Policy of the CNTRLLS on the need for regulations that ensure conformity of the approval procedure with the principles of collective bargaining; (ii) the current Government decided in March 2024 to establish a technical round table proposing to develop a comprehensive regulation to ensure that collective bargaining in the public sector has a clear and balanced normative framework; in this regard, consultations were held with the employers and workers on draft regulations on collective bargaining in the civil service, and draft regulations on the approval and denunciation of concluded collective agreements on conditions of work in the public sector; and (iii) consultations were held in May 2024 when the employers and workers had presented their views and proposals. The Committee takes note of these aspects and also notes that the Government has requested technical assistance from the Office to determine, based on comparative law, guidelines to improve the exercise of collective bargaining in the public sector. Welcoming the initiatives taken by the Government, the Committee, recalling that Guatemala has also ratified the Collective Bargaining Convention, 1981 (No. 154), trusts that the Government, in consultation with the social partners concerned, will be able to develop a regulatory framework that, taking into account the specific characteristics of collective bargaining in the public sector: (i) ensures a meaningful scope for collective bargaining of the working and employment conditions of public sector workers, including remuneration; (ii) establishes clear rules on the procedures for determining available public funds prior to the signing of collective agreements; and (iii) avoids any delay in the approval process of collective agreements. The Committee requests the Government to provide information on the progress made in this regard.

Application of the Convention in practice. The maquila sector. In its previous comments, the Committee urged the Government, in accordance with the campaign described in the Committee’s comments on the application of Convention No. 87, to take specific measures to promote freedom of association and collective bargaining in the maquila sector and to provide updated information on the exercise of collective rights in this sector. The Committee notes the Government’s indications that, in coordination with the Ministry of Economy, it has identified 942 enterprises related to the maquila sector, indicating that it will coordinate with the General Labour Inspectorate for the monitoring of labour and trade union rights. The Committee regrets to note the lack of information from the Government on specific actions to promote freedom of association and collective bargaining in the maquila sector and also notes the absence of information requested on the exercise of collective rights in this sector. Emphasizing that the violation of trade union rights in the maquila sector constitutes one of the allegations of the complaint presented under article 26 of the ILO Constitution, the Committee once again urges the Government to take specific steps to promote freedom of association and collective bargaining in this sector and to provide updated information on the number of collective agreements in force and the number of workers covered therein, as well as the number of trade union organizations active in the maquila.

Application of the Convention in municipal authorities. In its previous comments, the Committee urged the Government to reinforce its efforts to resolve the many existing disputes in municipal authorities in accordance with the Convention, and to engage in broad dialogue with the social partners and the respective authorities with a view to finding lasting solutions, including of a legislative nature, to the issues arising in relation to the exercise of the collective rights of municipal workers. The Committee notes that the Government indicates its efforts at rapprochement with the National Association of Municipalities to address trade union-related matters. The Committee once again urges the Government to take all necessary measures, including the adoption of legislation to ensure the application of the Convention in the municipalities. The Committee requests the Government to keep it informed of any progress achieved in this respect.

Tripartite settlement of disputes in relation to trade union matters and collective bargaining. In its previous comments, the Committee encouraged the tripartite constituents to renew their efforts to provide the Subcommittee on Mediation and Conflict Resolution of the CNTRLLS with one or more mediators so that it can begin to discharge its functions. The Committee notes the Government’s indication that: (i) in the CNTRLLS meetings in November 2023, and March and May 2024, emphasis was placed on the need for ILO technical assistance to develop the profile of a mediator to manage this Subcommittee; and (ii) while progress is being made in defining and selecting a mediator, ILO technical assistance has been secured so that over the course of 2024 the capacities of the Subcommittee members are strengthened and optimized through certification courses on conflict mediation. The Committee hopes that the Government will soon be able to report on the appointment of a mediator and the effective start of the work of the Subcommittee on Mediation and Conflict Resolution.

The Committee takes due note that the Government has availed itself of ILO technical assistance to address several of the serious difficulties concerning the application of the Convention that have been noted for many years. The Committee encourages and urges the Government to, with the participation of the CNTRLLS, take all necessary legislative and practical measures to resolve these issues.

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