REPRESENTATION (article 24) - GUATEMALA - C144 - 2003

Report of the Committee set up to examine the representation alleging non-observance by Guatemala of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), presented under article 24 of the Constitution of the ILO by the Trade Union and Popular Action Unit (UASP) and the Trade Union of Workers of Guatemala (UNSITRAGUA)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. In communications dated 12 July and 14 August 2001, the Trade Union and Popular Action Unit (UASP) and the Trade Union of Workers of Guatemala (UNSITRAGUA) made a representation to the International Labour Office under article 24 of the ILO Constitution, in which they alleged that the Government of Guatemala had failed to observe the provisions of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
3. 2. The provisions of the Constitution of the ILO concerning the submission of representations are as follows:
4. Article 24
5. Representations of non-observance of Conventions
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. Publication of presentation
9. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
10. 3. In accordance with article 1 of the Standing Orders concerning the procedure for the examination of representations revised by the Governing Body at its 212th Session (March 1980), the Director-General acknowledged receipt of the representation and duly informed the Government of Guatemala.
11. 4. In accordance with article 2, paragraph 1, of the aforementioned Standing Orders, the Director-General brought the representation before the Officers of the Governing Body (282nd Session, November 2001), who then reported to the Governing Body on the receivability of the representation, in accordance with paragraph 3 of the same article. In accordance with article 2, paragraph 2, of the Standing Orders, the Officers of the Governing Body reported that:
12. (a) the representation had been communicated in writing to the International Labour Office;
13. (b) it emanated from two workers' organizations;
14. (c) it referred specifically to article 24 of the ILO Constitution;
15. (d) it concerned a Member of the Organization;
16. (e) it referred to a Convention that has been ratified by Guatemala and which continues to be in force in the country; (Endnote 1)
17. (f) the representation indicated in what respect it was alleged that Guatemala had failed to secure effective observance within its jurisdiction of Convention No. 144.
18. 5. The Officers of the Governing Body noted that the representation satisfied all the formal requirements for them to be able to rule on its receivability. In addition, the Officers of the Governing Body recalled that, also at its 282nd Session, the Governing Body would examine other questions relating to Guatemala. (Endnote 2) At the same time, the Committee of Experts on the Application of Conventions and Recommendations was due to examine the report presented by the Government of Guatemala on the application of Convention No. 144. Under these circumstances the Governing Body decided that the representation was receivable, and to postpone until the March 2002 meeting the setting up of a committee to examine it.
19. 6. At its 283rd Session (March 2002), the Governing Body, on the recommendation of its Officers, appointed a committee to examine this representation, chaired by Ms. Rovirosa Priego (Government member, Mexico), the other members being Mr. De Regil (Employer member) and Ms. Anderson (Worker member).
20. 7. In accordance with article 4, paragraph 1, of the Standing Orders, the committee invited the Government to submit a written statement by 30 September 2002. It also requested the two workers' organizations to provide the committee with additional information, if they wished to do so, by the same date.
21. 8. The committee took note of the written statements of the Government of Guatemala dated 10 December 2001 and 19 September 2002.
22. 9. Following informal consultations during the Governing Body's 285th Session (November 2002), the committee met in Geneva in March 2003 and approved the present report.
23. II. Examination of the representation
24. A. Allegations made by the complainants
25. 10. In their communication, the complainants recalled that the Tripartite Commission on International Labour Issues created in 1995 by a ministerial agreement had been meeting periodically. It had discussed matters of concern to workers and employers and had made recommendations regarding the adoption of labour legislation prepared by the National Congress, for example the Labour Code reforms promulgated in 1998 to implement the Peace Accords.
26. 11. The complainants expressed serious concern at the fact that the authorities, which had come to power in January 2000, had devalued the Tripartite Commission as a forum for dialogue by refusing to allow discussion within it of questions which legally came within its remit. They were especially worried by the fact that the Ministry of Labour had refused to submit to the Tripartite Commission the draft Labour Procedural Code which had been promoted since last year, or even the reforms instigated by the Executive in 2001 to adapt national law and bring it into line with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
27. 12. In the view of the complainant organizations, the Ministry of Labour had justified its conduct by claiming that the consensus required within the Tripartite Commission for decisions to be adopted implied in practice a right of veto on the part of any of the social partners. The complainants considered that this assertion was incorrect from every point of view. In their view, the requirement for consensus did not under any circumstances release the Government from its obligation to hold consultations on topics of concern to the productive sector. At any event, even if it was not possible to reach agreement within the Tripartite Commission after in-depth discussions, there was no doubt regarding the need for the Government to do whatever was necessary to honour its obligations, taking into account the views of the workers and employers.
28. 13. The complainant organizations referred in this context to the questions raised by the Workers' delegate of Guatemala during the 87th Session of the International Labour Conference (Geneva, June 1999), in which he maintained that:
29. ... The ILO's approach to deal with problems by means of social dialogue is right, especially because one of the features of such dialogue is the voluntary nature of the participation of the constituents. This means that Members accept obligations in full knowledge of what they are doing and this implies a conscious commitment which must be met without any excuses ... the ILO has a great advantage, as the Director-General points out in his Report: governments, workers and employers can sit around its meeting tables; but this has never been sufficient if people do not come together with the intention of reaching compromises and carrying them out. The entire structure of the ILO may become inadequate if its constituents fail to act responsibly. (Endnote 3)
30. 14. The complainants asserted that the actions of the Ministry of Labour jeopardized the success of the sole forum available to the productive sector for discussing matters of concern to it, expressing its views and settling differences, and recalled that it had taken more than six years to consolidate efforts for social dialogue which had been serious and dynamic. By persisting in its attitude, the Ministry of Labour was disregarding its commitments to the Organization and causing irreparable damage to industrial relations in Guatemala.
31. 15. The complainants wished to emphasize that the repeated flouting of Convention No. 144 by the Government had to stop and that all necessary efforts needed to be made to redress the situation and revive the social dialogue initiative initiated by the productive sector.
32. B. The Government's observations
33. 16. In a communication dated 10 December 2001 (received after the statement of receivability but before the committee was appointed), the Government stated that, during the meeting held on 2 March 2000, the examination of the proposed Labour Code reform had been on the agenda of the Tripartite Commission. The Government has supplied detailed documentation, including the agenda and minutes of the meeting of 2 March 2000, as well as press cuttings on the events.
34. Consultations in 2000 on reforms to the Labour Code
35. 17. The Government states that a draft law reforming the Labour Code had been presented to the Legislature, which had sought the opinions of the employers and workers. When it proved impossible to reach bipartite agreement, the Legislature urged the Tripartite Commission to hold further discussions to enable employers, workers and government authorities to come to an agreement on the proposed reforms. Only after an agreement was reached between employers and workers did the Executive present the proposed legislative reforms to the Legislature; these reforms gave rise to the adoption by Congress of Legislative Decree No. 13-200 which, owing to the lack of consensus between the employers and workers, included only eight of the 37 original articles contained in the reforms presented by the Executive.
36. 18. The Government states that the reforms to the Labour Code introduced in Congressional Decree No 13-2001 of 25 April 2001 (Endnote 4) do not meet all the requirements put forward by the ILO's supervisory bodies, nor do they meet the criteria of eligibility for the Generalized System of Preferences of the United States or of the Caribbean Basin Initiative. In the end, the National Congress examined new draft legislation that led to the adoption of Legislative Decree No. 18-2001 on 14 May 2001. (Endnote 5)
37. Consultations in 2000 on reforms to the Labour Procedural Code
38. 19. With regard to the reforms to the Labour Procedural Code, the Government maintains that the relevant consultations were held, and has supplied copies of the communications of 23 August 2000 that were sent to representatives of the employers' and workers' organizations and other institutions concerned (such as the Supreme Court) inviting them to examine the proposed new Labour Procedural Code and requesting replies by 22 September 2000. In a communication dated 7 September 2000, the Union of Guatemalan Workers (UGT) considered that the proposed Labour Procedural Code should not be considered, and that priority should be given to the Labour Code reforms. In a reply dated 11 September 2000 addressed to five organizations of employers and workers, the Ministry of Labour and Social Security stressed the importance of discussing the proposed reforms to the Labour Procedural Code and gave the social partners a further period of 30 days to give their opinions. A meeting of the Tripartite Commission was convened for 28 November 2000 with the aim of sounding out the views of the members regarding the Labour Procedural Code, although from the information examined by the Committee it was not clear if that meeting actually took place.
39. 20. Consequently, the Government denies that the procedure lacked consultation. It considers that, if neither the central trade unions nor the employers make their views known, the Government is bound to do what it considers to be necessary. The Government recalls that according to article 11, paragraph 2, of the Standing Orders of the Tripartite Commission on International Labour Issues: "The Commission shall examine only such questions as may be approved unanimously for inclusion on the agenda approved at the start of the session." The Government cannot be accused of refusing to examine certain questions, since the Standing Orders of the Tripartite Commission require unanimity for a decision to be reached.
40. 21. The Government endorses an approach to problems based on dialogue, which requires employers and workers to make commitments and act on them, in particular with regard to the punctilious application of labour law with the objective of promoting decent working conditions and decent work.
41. 22. The Government considers that a democratic, tripartite approach to problems must be based on a healthy respect for differences and a willingness to make mutual concessions. The Government emphasizes that the consultations on Convention No. 144 have been in conformity with the relevant regulations.
42. Work of the Advisory Commission on International Labour Issues in 2002
43. 23. In a communication dated September 2002, the Government reaffirms its attachment to an approach to problems based on social dialogue as an indispensable tool for achieving consensus. It also recalls that the Labour Code reforms had already come into force. As regards the reforms to the Labour Procedural Code, consultations were continuing and the Government would like to hear the views of the employers, workers and civil society organizations before approving the reforms.
44. 24. With regard to the work of the Tripartite Commission on International Labour Issues, the Government has supplied a copy of the new membership of that body and its agenda for 2002-03. Under the terms of Ministerial Agreement No. 400-2002 dated 29August 2002, the members of the Commission would be nominated by the country's most representative organizations of workers and employers.
45. 25. The minutes of the meeting of the Tripartite Commission on International Labour Issues held on 12 September 2002 (supplied by the Government) refer among other things to questions arising from pending labour reforms, analysis of the observations of the Committee of Experts on the Application of Conventions and Recommendations, cases before the Committee on Freedom of Association, reforms to certain provisions of the Penal Code, issues relating to the application of the Protection of Wages Convention, 1949 (No. 95), the submission to Congress of pending Conventions, Recommendations and Protocols, and proposed amendments to the Standing Orders of the Advisory Commission on International Labour Issues.
46. C. The Committee's conclusions
47. 26. In formulating its conclusions, the Committee refers to the observations of the complainants and the statements received from the Government, as reproduced in the foregoing paragraphs. The Committee has also taken into account the observations of the Committee of Experts on the Application of Conventions and Recommendations in relation to its examination of the Government's reports on the application of Convention No. 144. The Committee has also taken note of the information relating directly to this representation and contained in the reports of the Committee on Freedom of Association. The Committee has deemed it appropriate to take into account certain technical cooperation activities of the Office that were directly connected with questions raised in the representation.
48. 27. The Committee recalls that the fundamental obligation under the terms of Convention No. 144 is contained in Article 2, paragraph 1, of that instrument. According to that provision, the State party "undertakes to operate procedures which ensure effective consultations, between representatives of the government, of employers and of workers". As the Committee of Experts stated in its General Survey of 2000, (Endnote 6) "The consultations required under the terms of the Convention are intended, rather than leading to an agreement, to assist the competent authority in taking a decision. For the consultations to be meaningful, they should not be merely a token gesture, but should be given serious consideration by the competent authority. Although the public authorities must undertake consultations in good faith, they are not bound by any of the opinions expressed and remain entirely responsible for the final decision." The Committee notes that it is a basic principle of Convention No. 144 that "the outcome of the consultations should not be regarded as binding" and that "the ultimate decisions must rest with the government or legislature, as the case may be".
49. 28. Article 2, paragraph 2, of the Convention also stipulates that "The nature and form of the procedures" for effective consultations on all matters relating to the ILO's activities as set out in Article 5, paragraph 1, must be determined in each country in accordance with national practice, after consultation with the representative organizations. Paragraph 3 of the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152), gives some examples of possible forms of tripartite consultations, including the establishment of committees specifically for discussing questions relating to ILO activities, the establishment of bodies with special responsibility for specific subject areas, or written communications where those involved in the consultative procedures are agreed that such communications are appropriate and sufficient.
50. 29. In this respect, the Committee notes that, since the entry into force of Convention No. 144, the Government of Guatemala has set up the Tripartite Commission on International Labour Issues through Ministerial Agreement No. 93 of 13 December 1995, in view of the need "to ensure effective participation of employers' and workers' organizations in formulating labour legislation and monitoring observance thereof, in particular as regards international labour standards and in discussions on matters considered to be of interest in improving industrial relations in the country".
51. 30. Particular importance is attached by the Committee to what the Committee of Experts expressed in the following terms in its direct request of December 2001:
52. In its latest detailed report, received in September 2001, the Government provides information on the functioning of the Tripartite Commission on International Labour Affairs and the written consultations with employers' and workers' organizations concerning matters addressed in the Convention. The Government also indicates that the regulation concerning the functioning of the Tripartite Commission on International Labour Affairs guarantees equality between the parties since the agenda, discussion materials, conclusions and recommendations are arrived at through absolute consensus. The Committee notes that the requirement of absolute consensus could lead to a reduction in the effectiveness of the consultations required by the Convention. In this respect, it recalls that the Convention does not require that an agreement should necessarily be the goal of the consultation; the principal aim of the consultations is to assist the competent authority in taking a decision (see paragraphs 29 and 30 of the General Survey of 2000). (Endnote 7) The Committee hopes that the Government and the social partners will take advantage of constructive social dialogue in the consultations required under the Convention and will progress in its application.
53. 31. The Committee also considers it appropriate to stress that the requirement for absolute consensus, as set out in the Standing Orders of the Tripartite Commission on International Labour Issues, may in 2000 have reduced the effectiveness of the consultations carried out within the Tripartite Commission.
54. 32. Indeed, in its General Survey of 2000, the Committee of Experts emphasized that "the representatives of employers and workers who participate in the consultation must in no way be bound by the final decision or position adopted by the Government. It would indeed be contrary to the principle of autonomy of employers and workers with regard to governments, which is applied in the work of the ILO's bodies, if they were bound by the Government's position simply because they had been consulted". (Endnote 8) The Committee of Experts also states that, in order to be "effective", "consultations must take place before final decisions are taken ... The important factor here is that the persons consulted should be able to put forward their opinions before the Government takes its final decision. The effectiveness of consultations thus presupposes in practice that employers' and workers' representatives have all the necessary information far enough in advance to formulate their own opinions". (Endnote 9)
55. 33. The Committee notes that the purpose of the consultations held in Guatemala during 2000 by the Tripartite Commission on International Labour Issues was to achieve a consensus on legislative reforms intended to amend national law in response to observations made by the supervisory bodies in relation to the application of Conventions Nos. 87 and 98. In this respect, the Committee considers it appropriate to refer to the information gathered in the report of the direct contacts mission carried out in Guatemala from 23 to 27 April 2001, (Endnote 10) which gives a comprehensive picture of the advances made and the obstacles encountered during 2000 and 2001 in the process of consultation between the social partners affecting the adoption of legislation on pending questions. The Committee notes that the social partners in 2001, at the request of the direct contacts mission, agreed "to set aside certain a priori objections (particularly by the employers and the Ministry of Labour) to various reforms on which there had supposedly been no consultation".
56. 34. The Committee notes that, in November 2001, the Committee on Freedom of Association had noted with interest the agreement by the Government and the social partners to establish a new process of dialogue geared to "identifying options for remedying the severe lack of institutional effectiveness evident from the questions raised before the Committee on Freedom of Association. Aspects of this include: reforming procedures for settling individual and collective labour disputes (following the proposal to speed up procedures and ensure compliance with existing laws and court rulings); development of alternative techniques and mechanisms for prevention and settlement by the parties themselves of disputes". (Endnote 11)
57. 35. In this regard, having noted the information and documentation supplied by the ILO's Multidisciplinary Advisory Team (MDT) in San José (Costa Rica), the Committee notes that the questions raised in the record of the meeting of the Tripartite Commission on International Labour Issues held on 12 September 2002 has given rise to a specific follow-up: on 6 November 2002, a tripartite workshop was held with the participation of experts from the San José MDT, dealing with guidelines on employment policy for the Poverty Reduction Strategy (PRS) in Guatemala. The Committee understands that, as a result of the workshop, it was decided that discussions by the Tripartite Commission would continue and consensus would be sought on programmes, projects and specific instruments with a view to giving priority to employment policies which might be incorporated into the PRS.
58. 36. Furthermore, the Tripartite Commission has addressed other subjects covered by the Convention (submission of instruments adopted by the Conference, follow-up to observations by the ILO supervisory bodies, reforms to its own Standing Orders).
59. 37. The Committee also notes that the Government and the social partners have had assistance from the project "Tripartism and Social Dialogue in Central America: Strengthening the Processes of Consolidating Democracy" (PRODIAC), whose activities may also help to strengthen the work of the Tripartite Commission on International Labour Issues. (Endnote 12)
60. 38. At any event, the Committee considers that, in the light of the available information, the difficulties that arose in 2000 and diminished the effectiveness of tripartite consultations have been overcome.
61. 39. Under the circumstances, the Committee recalls the resolution on tripartism and social dialogue adopted by the Conference at its 90th Session (June 2002), which emphasizes that "social dialogue and tripartism have proved to be a valuable and democratic means to address social concerns, build consensus, help elaborate international labour standards and examine a wide range of labour issues on which the social partners play a direct, legitimate and irreplaceable role". The resolution also invites governments and organizations of employers and workers to promote and reinforce tripartism and social dialogue.
62. 40. In this respect, the fact that Guatemala has ratified Convention No. 144 and is required to adopt measures to implement its provisions means that the Government and employers' and workers' organizations will have to promote and strengthen tripartism and social dialogue in all the areas covered by the Convention. If tripartite consultations are to succeed, the participants must demonstrate the required aptitude for social dialogue (attentiveness to the positions of the other parties, respect for all participants, adherence to commitments made, willingness to resolve conflicts).
63. 41. At any event, as the resolution indicates, "social dialogue and tripartism are modern and dynamic processes that have unique capacity and great potential to contribute to progress in many difficult and challenging situations and issues". The Committee hopes that the Government and the social partners, in accordance with their national practice, and calling on the experience and advice of the ILO if they consider it appropriate, will continue their efforts to promote social dialogue and tripartism in Guatemala.
64. 42. In the specific context of the representation, the Committee considers that the Government has acted in good faith in consulting representative organizations of employers and workers on labour reforms, and making renewed efforts when no comments were received. The Committee considers that the procedures used were consistent with the requirements of the Convention.
65. D. The Committee's recommendations
66. 43. The Committee recommends to the Governing Body:
67. (a) To approve the present report.
68. (b) Taking into account the conclusions set out in paragraphs 27-43 of the present report, to invite the Government of Guatemala, in its future reports under article 22 of the ILO Constitution, to provide information on the activities of the Tripartite Commission on International Labour Issues, including specific information on any progress made with the technical assistance of the Office in holding tripartite consultations on matters relating to Convention No. 144.
69. (c) To declare closed the proceedings before the Governing Body in connection with the representation in which two workers' organizations allege failure by Guatemala to comply with the provisions of Convention No. 144.
70. Geneva, 19 March 2003.
71. Signed: Mr. S. Rovirosa Priego,
72. Mr. Jorge A. De Regil,
73. Ms. Hilde Anderson.
74. Point for decision: Paragraph 43.
75. Endnote 1
76. Guatemala ratified Convention No. 144 on 13 June 1989.
77. Endnote 2
78. See the 326th Report of the Committee on Freedom of Association (document GB.282/6), in particular paras. 82-95 on Case No. 1970 (Guatemala), which contain the report of the direct contacts mission in Guatemala that took place from 23 to 27 April 2001.
79. Endnote 3
80. International Labour Conference, 87th Session, Provisional Record No. 18, Vol. 1, p. 18/31, Geneva, 1999.
81. Endnote 4
82. Diario de Centro América, 25 May 2001, No. 68, pp. 1-2.
83. Endnote 5
84. op. cit., pp. 2-5.
85. Endnote 6
86. See General Survey of 2000 on tripartite consultation, Convention No. 144 and Recommendation No. 152, International Labour Conference, 88th Session, Geneva, May-June 2000, Report III(IB), para. 29.
87. Endnote 7
88. See the pertinent excerpts from the paragraphs of the General Survey referred to above.
89. Endnote 8
90. General Survey of 2000, para. 30.
91. Endnote 9
92. op. cit., para. 31.
93. Endnote 10
94. See the 326th Report of the Committee on Freedom of Association (document GB.282/6), in particular Part VI on: "The partial reform of the Labour Code adopted by the Congress of the Republic during the mission's visit and the subsequent partial reform."
95. Endnote 11
96. See the 326th Report of the Committee on Freedom of Association, GB.282/6, para. 91.
97. Endnot 12
98. The Santo Domingo Agreement for a subregional tripartite labour agenda, which was signed on 24 May 2002 by the ILO and government delegations and representatives of employers' and workers' organizations from Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama and the Dominican Republic, refers to "strengthening the partners in the production process, workers and employers, in the interests of social dialogue, as well as bipartite and/or tripartite bodies" (point 5 of the subregional tripartite labour agenda).