Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

The Government provided the following written information.

The Government again reiterates its commitment to the protection and promotion of freedom of association and underlines the absolute priority that must be given to protecting the life and physical safety of all the people of Guatemala, particularly trade unionists. Accordingly, it wishes to point out that measures have repeatedly been taken to combat the widespread violence in the country. Despite the fact that this is a difficult phase in Guatemala’s history, progress has been made in the application of justice as a whole, due to the combined efforts of all institutions involved in the administration of justice.

As an expression of the Government’s desire to give special attention to labour relations, the Inter-Institutional Committee on Labour Relations in Guatemala – which comprises the Ministry of Labour and Social Welfare, the Ministry of Economy and the External Relations, which currently also includes the Ministry of the Interior, each within their respective jurisdictions and without prejudice to the autonomy and independence of the President of the Judiciary, the Attorney-General and Public Prosecutor – met 18 times in the past year. At these meetings the Committee discussed the country’s labour problems, as a result of which it was able to draw up a “road map” with dates and specific activities that the Government of Guatemala is carrying out in order to strengthen the implementation enforcement of labour laws, in conjunction with the judiciary and the Office of the Attorney-General.

In this context, the Government wishes to state most vigorously that it does not tolerate or encourage any threats to, or assaults on, the physical safety or life of Guatemalan citizens, particularly trade unionists, or attacks on trade union premises, inasmuch as it is the duty of the State to safeguard private property as an inherent human right. The Government fulfils its obligation to investigate acts of violence and/or offences relating to private property. In order to improve the investigation of offences committed against trade unionists, the Inter-Institutional Committee on Labour Relations in Guatemala and the Tripartite Committee on International Labour Affairs have requested that the responsible unit be strengthened.

The Government is pleased to state that the Office of the Prosecutor-General has been restructured and, under Agreement No. 49-2011 of 20 May 2011 to amend Agreement No. 37-2010 containing the regulations governing the structure and functioning of the Human Rights Department of the Prosecutor’s Office, it has established a Special Prosecutor’s Office to investigate offences against trade unionists. These changes will appear in the Prosecutor-General’s classification of posts and salaries.

The Supreme Court of Justice has also made important changes in the way it operates, specifically with regard to labour issues, for which a new management model has been adopted that seeks to separate administrative from judicial functions, in order to focus expert resources on judicial matters and assign administrative matters to appropriately trained staff. All labour courts are accordingly now housed in a single building, which will streamline and expedite the services provided. The measures described above call for close coordination between the institutions responsible for administering justice, so as to cover every aspect of the protection of workers’ rights.

The Constitutional Court, which is a permanent court with its own jurisdiction, whose essential function is to uphold the constitutional order and which acts independently of other state bodies in order to guarantee the rights of the people of Guatemala, has handed down the following rulings with respect to the application of procedural law and labour law:

– Appeals to maintain workers’ rights (amparos): If for any reason during the processing of such appeals a case could not proceed or if it could be declared irreceivable because the correct formalities were not observed or because of a procedural irregularity, the Constitutional Court has ruled that, in particularly relevant cases in which specific rights are discussed (existence of an employment contract, justified or wrongful dismissal, entitlement to payment of outstanding wages, etc.), the appeal interrupts the statute of limitations as it might pertain to a given right – generally with respect to workers’ rights. Those concerned can thus initiate ordinary legal proceedings without regard to the statute of limitations.

– Restrictions on the right to appeal: The Constitutional Court has determined that litigants in legal proceedings with specific appeals procedures may not have recourse to other appeals procedures. In accordance with section 365 of the Labour Code, under the principle of “special jurisdiction” an appeal may only be lodged against a final judgment setting aside a case or pronouncing a verdict. No appeal is admissible if it does not fulfil one of these conditions.

– Precedence given to worker’s claims (amparos laborales): Under the authority conferred on it by the Habeas Corpus Act (Ley de Amparo, Exhibición Personal y Constitucionalidad), the Constitutional Court has amended Agreement 4-89 to the effect that appeals for protection under the Constitution can no longer hinder the course of ordinary court actions. There were two key amendments that should be highlighted under this new legislation. First, the Agreement expressly stipulates that, so long as provisional protection of the courts has not been officially decreed by the Constitutional Court, ordinary court proceedings must follow their normal course. This modifies previous practice whereby courts of law would suspend proceedings whenever any of their rulings was challenged on grounds of infringement of constitutional rights. The second amendment concerns requests for protection by the court also at the appellate level and that such requests must be substantiated. This is to avoid simple appeals, which in the past tended to be lodged mechanically and systematically merely to hold up the proceedings. By requiring that full grounds be submitted, the Constitutional Court’s role, other than that of examining the appeal in detail to determine whether there is any irregularity from the constitutional standpoint, is limited to considering the case that is placed before it.

These rulings of the Constitutional Court are legally binding and apply to all legal proceedings initiated by workers, which constitutes significant progress in the defence of labour rights. Pursuing its systematic and integrated approach, and in order to strengthen the enforcement of labour legislation in the country, the Government has signed an Inter-Institutional Framework Agreement for the Exchange of Information between the Ministry of Economy and the Ministry of Labour and Social Welfare (Decree 29-89 of the Guatemalan Congress), whereby the general labour inspectorate keeps a single centralized registry (part of the Integrated Labour System) of all entities entitled to the benefits conferred under the aforementioned Decree 29-89 for the Development of Export Processing Zones (maquilas). As a result, it is now possible to cross-check the information that is used in the labour inspectorate’s enforcement of labour laws. This is reinforced by the Directorate of Trade and Investment Services of the Ministry of Economy which, through its Industrial Policy Department, verifies that enterprises make proper use of the benefits to which they are entitled. The State of Guatemala thus complies with the legislation in force by establishing an efficient mechanism for the Ministry of Economy to carry out its supervisory activities, in coordination with the Ministry of Labour and Social Welfare and for the greater benefit of the workers.

The Government emphasizes that the legitimacy of the Tripartite Committee on International Labour Affairs and of its members, as well as the representativity of workers’ organizations, can be established only through the Labour Register of the General Labour Directorate of the Ministry of Labour and Social Welfare, with which they are required to update their registration each year. Otherwise, not only do they have no legal personality but it is impossible for them to establish their representativity. The Government’s invitation to the employers’ and workers’ sectors to be part of the Tripartite Committee on International Labour Affairs was published at the end of 2010 in the most widely read newspaper in the country so that all organizations that wished to participate could do so.

Regarding the amendments that are needed for Guatemala’s legislation to comply with the international labour Conventions that it has ratified, a committee is to be appointed under an agreement currently being drafted by the General Secretariat of the Presidential Office to study how the labour legislation needs to be amended to fulfil the obligations deriving from ILO Conventions ratified by Guatemala, along with other commitments entered into within the framework of Chapter XVI of the Dominican Republic–Central America – United States Free Trade Agreement (DR–CAFTA).

In order to guarantee that the general labour inspectorate can carry out its activities in places of work without hindrance, the Ministry of Labour and Social Welfare, by virtue of Ministerial Agreement No. 42.2011, has laid down the procedure to be followed if the labour inspectors encounter opposition.

Finally, the Government draws attention to the fact that it has made a considerable effort to improve labour justice in the country, and that in the past two years much has been done to establish the basis for far-reaching changes in the implementation of Guatemala’s labour legislation.

In addition, before the Committee, a Government representative reported on initiatives and progress made in the country in the area of labour since the last session of the Conference. In follow-up to the conclusions reached by the Committee on that occasion, the Government had received a visit from Dr Alfonso Valdivieso, accompanied by ILO officials, from 9 to 13 May 2011. The members of the mission had been received by the Ministry of Labour and Social Welfare, the Labour Committee of the Congress of the Republic, the Attorney-General and the Public Prosecutor, the Supreme Court of Justice, the International Commission against Impunity in Guatemala (CICIG), and the Constitutional Court. His Government was willing to address the recommendations of the mission.

With regard to the observation of the Committee of Experts and the cases pending with the Attorney-General’s Office, the Office of the Public Prosecutor had undergone internal reorganization, having issued an agreement reforming the regulations on the organization and operation of the human rights section of the Office of the Attorney-General, and a special prosecution unit was being created for crimes against trade unionists. On the issue of legislation, the President of the Republic had created a presidential commission to study labour legislation reform in order to implement obligations arising from ratified ILO Conventions, which brought together the Minister of Labour and Social Welfare, the Minister of the Economy and the Minister of External Relations. With regard to trade union membership rates and the very small number of collective agreements, it must be recalled that, in accordance with the Convention, the Minister of Labour and Social Welfare was legally prevented from doing anything about the low level of unionization and had therefore refrained from taking action. Furthermore, the Labour Code provided that the Minister of Labour and Social Welfare should formulate and implement a national policy to protect and develop trade unionism, as evidenced by the fact that, in 2011, 46 trade unions had been registered and, in November 2010, the first collective agreement on working conditions had been signed between the National League against Cancer and its trade union.

With regard to the exercise of trade union rights in practice at maquilas (export processing zones), the speaker indicated that the Government had accepted technical assistance from the Office to deal with the issue and to study the recommendations made. The Government had prepared an Inter-institutional Framework Agreement for the Exchange of Information between the Ministry of the Economy and the Ministry of Labour and Social Welfare, and the Inspectorate-General of Labour maintained a single centralized register of all trading enterprises eligible to benefit from the Act to foster and develop export and maquila activities. Since the framework agreement had entered into force, the Ministry of Labour had inspected 747 registered export companies and had established that 20 enterprises were failing to comply with labour legislation, of which 11 had rectified the situation, four had had their tax benefits revoked, and the rest were still being investigated.

With regard to labour inspection, a permanent programme of training for labour inspectors had been introduced at the national level, with support from the United States Department of Labour and from the ILO. A first national meeting of labour inspectors and health and safety officials had been held, in which 90 per cent of labour inspectors had taken part. Training had also been enhanced as regards the introduction and use of inspection protocols and in best practices in the use of the electronic case system. The Government of Canada had also supported the training labour inspectors in Guatemala through the “Real Card” project. Lastly, the Ministry of Labour and Social Welfare had published a ministerial agreement strengthening the role of labour inspectors to avoid that they encounter obstacles when inspecting enterprises in all productive sectors within the country. With regard to the registration of trade unions, workers’ organizations had been asked to update their details as required by law in order to provide legal certainty for their activities. With respect to the registration of the Trade Union Confederation of Guatemala (UNSITRAGUA), the Government had provided the mission with a document fully clarifying the Union’s legal status. The speaker concluded by stating that the Government of Guatemala was displaying political will, as a result of which various initiatives had been strengthened and were starting to bear fruit. It was receiving invaluable assistance from the Governments of the United States, Canada and Spain, the European Union, and the Office, to all of which it expressed its deep appreciation.

Another Government representative, magistrate of the Supreme Court of Justice, indicated, with reference to judicial issues, that the programme “Zero tolerance for corruption, peddling of influence and impunity” had been launched and that the labour courts created to overcome the backlog of labour cases were fully operational. A specific unit with the capacity to monitor and follow the progress of labour procedures had been established allowing matters to be expedited and the guidance and information provided to those concerned. A computerized system allowing judges to take action of their own initiative in the case of non-execution of sentences and reinstatement orders, had also been established. Over a period of 19 months, the Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio) had overcome a backlog of over 1,400 labour cases. That was being achieved, inter alia, with the assistance of the United States Agency for International Development. Moreover, a labour inspection office was operating in the same building to provide on-the-spot guidance to users on labour and procedural issues, thereby facilitating access to information and justice. That had also strengthened the State’s inter-institutional links.

With regard to the measures taken by the Supreme Court of Justice, she indicated that the Criminal Chamber had adopted measures relating to the access to legal assistance for victims, the coordination of inter-institutional action and collaboration with civil society. Coordination mechanisms had been established between the judicial authorities and a series of victim support institutions, through the operation of a programme combining municipal victim support bodies, as well as judicial facilitators trained and supported by the judicial authorities. Magistrates and prosecutors in the courts in criminal matters were particularly vulnerable to threats and other forms of coercion. The ordinary criminal courts were not adapted to cope with that and special criminal tribunals had been created to hear cases involving higher risk crimes and to respond more effectively to the generalized situation of violence which existed in the country. That was a response by the Supreme Court of Justice to the situation of impunity.

With regard to crimes against trade unionists, she indicated that every effort was being made to ensure that they were duly investigated and brought to justice. The possibility was envisaged of entrusting one of the existing criminal tribunals with the specific function of hearing cases of crimes against trade unionists, in view of the specificity of the victims, through the training of magistrates and auxiliary personnel to raise their awareness of the role of trade unions in the country. She also referred to the measures adopted in relation to working women. Since November 2010, six judicial instances had been in operation specializing in the murder and violence against women, including women workers for violence at the workplace. These measures had been made possible through the support of the United States Embassy, Spanish cooperation and the United Nations Population Fund. In conclusion, she thanked the governments, international organizations and civil society which had made it possible to improve the judicial system in the country.

The Employer members emphasized that it was a recurring case which was well known in the Committee since it had been discussed on at least 15 occasions, the last of which had been in 2010. This year it also came with a specific request from the Committee of Experts that the Government should submit further information at the Conference. Since 2001, violence had become increasingly widespread in the country as a result of the growth in drug trafficking and its impact on the exercise of freedom of association, and that had concealed or obscured some progress which could have been noted previously in relation to legislative changes. The observations of the Committee of Experts dealt with the situation of violence against trade unionists, on the one hand, and with the legislative changes that ensured the free establishment and operation of trade unions, on the other. The information supplied by various organizations was a source of concern for all parties. It should be emphasized that technical assistance had been provided by the ILO on numerous occasions aimed at supporting change in the regulatory framework, even though some major issues were still unresolved. In view of the gravity and urgency of the issue, the speaker emphasized that he would focus on the situation of widespread violence, which showed no signs of changing for the better. With a view to improving the situation, a number of direct contacts and high-level missions had visited the country. The Government had made an undertaking to draw up a roadmap to eliminate the violence, which had sought, unsuccessfully, to achieve agreement among the parties in the context of social dialogue. In June 2010, the Government had also agreed to the visit of an important international dignitary, accompanied by ILO officials, and that had gone ahead recently with the visit of Mr Valdivieso.

The Employer members stated that the measures that called for the elimination of acts of violence could be divided into two categories. The aim of the first category was to strengthen the institutions responsible for ensuring effective respect for freedom of association in practice. Guatemala was a developing country, still poor compared with other countries in the region, where the situation of violence appeared to be aggravated by significant institutional weakness which needed to be rectified. Both the roadmap and the repeated requests by the Committee of Experts and this Committee stressed the need to: increase budgetary allocations and reinforce the Office of the Public Prosecutor; increase the number of magistrates, inspectors and staff of the Ministry of Labour and Social Welfare; strengthen relations between the institutions; expedite proceedings in criminal and labour law cases relating to freedom of association; boost resources for increasing protection for trade unionists and their families and for witnesses who had been assaulted or threatened; and enforce sentences that have been passed by the courts. The second category of measures concerned the data and information relating to the evaluation of actions undertaken to analyse developments regarding this phenomenon.

In 2010, the Employer members had vigorously expressed their concern and the Government had been requested to demonstrate its political will by sufficient action to make the issue a priority, especially through budgetary allocations, the enforcement of court sentences and improved resources for the judiciary and administration. The Committee of Experts found no evidence of sufficient progress made, or at least regretted that the report submitted did not include information on strengthening of the institutions or evaluation of the progress made. They therefore voiced much greater concern than in previous years, and that was certainly the reason for requesting further information at the present session of the Conference. A worsening of the situation was also noted, especially in view of the conclusions of the Committee on Freedom of Association in 2009 and 2010.

The Employer members welcomed the information supplied by the Government and the magistrates of the Supreme Court of Justice in relation to the training of judges, the number of trade unions and the restructuring of the judiciary. However, that information was insufficient since it was also supposed to cover developments in the situation regarding the acts of violence. The investigation was important and should enable a clear definition of violent acts which took place in a context of widespread violence and those which resulted from measures taken specifically against trade unions. Serious violence had occurred resulting in the death of employers, in the very exercise of freedom of enterprises and right to collective bargaining. The Government had demonstrated goodwill through the acceptance of various high-level, direct contacts and technical assistance missions, and through its regular submission of reports. But goodwill was insufficient. In addition, the budget limitations resulting from a very fragile economic situation were not incompatible with priority and urgent actions in that sphere. The dialogue with the Government and the cooperation with this Committee and the Committee of Experts should be preserved as the best instrument for guaranteeing basic labour rights. Nothing should be allowed to weaken the capacity for investment and economic development in the country, since that was crucial for the strengthening of the institutions that would enable effect to be given to the obligations established by the Convention.

The Worker members recalled the statements they had made to the Committee, at the June 2010 Session of the Conference, with regard to the acts of violence against trade unionists in Guatemala, the legislative difficulties involved in implementing Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the matter of judicial impunity. At the time, they had presented very specific conclusions aimed at guaranteeing the full and comprehensive exercise of freedom of association as part of the strengthening of democracy in Guatemala and had expressed their strong desire that the Committee’s conclusions be included in a special paragraph of its report so as to draw attention to the contempt with which the country had treated Convention No. 87 since at least 1991. Their view had not prevailed, however, and after a highly animated discussion the Committee had opted to follow the proposal of the Employer members requesting the Government “to accept the possibility of the visit of an important international public figure, accompanied by the ILO at a high level, to examine these matters and make recommendations”. Out of respect for the ILO, the Worker members had gone along with the proposal. Yet, what new developments had there been in 2011 with regard to the conclusions adopted in 2010? Until the statement that had just been heard from the Government representative, the matter of the visit by an international public figure had not been clear; in any case it was the Government itself that had chosen the person that suited it best. At its previous session, the Committee of Experts had had very little legislative or factual information on the situation in the country at its disposal, whereas the Government had been supposed to communicate a detailed report in 2010 on tangible progress on all the points raised by this Committee. The Worker members had rejected any suggestion that the Committee of Experts be held to account for basing its comments solely on the documents in its possession and had emphasized that those comments reflected a strictly literal interpretation of the Convention. It was obvious from the information obtained from all sides that nothing had changed and that the Government’s lack of political will reflected its contempt for the workers. Legislative texts might be amended, but the same could not be said of their enforcement. The reality behind the situation was plainly economic greed.

The Worker members also noted the high-level mission that had taken place from 9 to 14 May 2011 and that the Government had, on 1 October 2010, requested ILO technical assistance to clarify the matter of UNISITRAGUA’s registration as a trade union. They recalled the tripartite mission that had visited the country in February 2009, during which the members of the mission representing workers had sensed a total lack of consideration on the part of the Government. That nothing had changed since the 2009 high-level mission was all too clear from the conclusions adopted by the Committee in 2010: the worsening of the situation of violence and impunity, insufficient political will to take action to combat violence against trade union leaders and members and to combat impunity, the urgent need to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunal, and the need to take measures to strengthen social dialogue, redefine the representation bodies and guarantee access for workers’ representatives that had been freely elected by the organizations existing in the country, in accordance with the comments of the supervisory bodies.

The high-level mission that had taken place in May 2011 was supposed to clarify those four points. In its report the mission had begun by recalling the staggering number of union leaders and trade unionists who had been murdered or whose lives had been threatened since 2007. It had referred to the generalized climate of violence and to the very limited resources employed by the judiciary to eradicate violence and restore the rule of law. It had also raised the legislative problems that were regularly mentioned by the ILO supervisory bodies, drawing attention especially to the provisions of Guatemala’s Labour Code that were in contradiction with Convention No. 87. The high-level mission had expressed its deep regret that, since the previous year, there had been no progress in the reforms called for by the Committee of Experts and that the Tripartite Commission on Labour Affairs had not presented a single Bill to Congress. While noting the arguments advanced by the Guatemalan authorities with regard to the progress made in the coverage of collective agreements in maquilas, the mission had expressed its doubts on the subject given the extremely low level of union membership in those areas, which it had been able to verify through its contacts with the union federations. In addition, it had asserted that it was urgent that the Trade Unions’ Unity of Guatemala (CUSG), the General Confederation of Workers of Guatemala (CGTG) and UNISATRAGUA take part in the activities of the Tripartite Commission on Labour Affairs, of which they were not members. The high-level mission added that a social dialogue institution that ignored such an essential part of the trade union movement could not adequately achieve its objectives. Finally, the mission’s report included its observations on the registration of trade unions, though there was no indication that the Government recognized that there was any need to envisage establishing a procedure for facilitating their registration. The one positive aspect was that the high-level mission had taken note of the creation of a bipartite working group within the Tripartite Commission on Labour Affairs, with the mandate to draw up a Bill on the establishment of an Economic and Social Council. If that Bill was not to be just for show, then it would certainly need the benefit of ILO technical assistance.

An observer of the International Trade Union Confederation (ITUC) stated that, for the past 57 years, the State had, under both military and civil regimes, been systematically violating Convention No. 87. There existed an unwritten policy against freedom of association that resulted in the Government having to appear before the Committee for 15 consecutive years. Despite a succession of high-level missions, direct contacts and technical assistance, the Committee of Experts was still calling on the Government to guarantee the protection of trade unionists facing death threats, to speed up judicial procedures and to investigate murders and other crimes against trade unionists so as to punish those responsible and to resolve the serious problem of judicial impunity for such crimes. During the high-level mission that visited the country in May 2011, the Minister of Labour and Social Welfare claimed that the trade unions’ accusations were unfounded and were just looking for confrontation. The speaker wondered whether the recent murder of union leaders, the systematic anti-union harassment, the mass dismissals of trade unionists, the refusal of employers to comply with court rulings in favour of trade unionists and the failure to investigate several murders were also just looking for confrontation. As the conclusions of the high-level mission showed, the situation continued to be delicate, serious and preoccupying.

The Employer member of Guatemala welcomed the visit of Mr Valdivieso as the head of the high-level mission entrusted with examining the issues that were pending. The speaker reiterated the willingness of the employers of Guatemala to promote the recommendations that were made and emphasized that he shared the concern of the mission regarding the acts of violence against trade unionists. Nevertheless, it was important to take into account the context in which such acts of violence were occurring, and the efforts made by the country to strengthen the rule of law. It was of vital interest to employers that acts of violence against trade unionists and employers were investigated, with a view to bringing those responsible to justice and identifying whether the causes of the crimes were linked to the professional activities of the victims. One of the figures that gave rise to concern was the number of violent deaths of employers, which had amounted to 28 in 2010.

Those concerns were shared by the judicial authorities and the magistrates of the Supreme Court of Justice were following the matter closely, resulting in the establishment of new labour courts. The Tripartite Commission on International Labour Affairs had been urging the Office of the Attorney-General of the Republic to strengthen investigations into these acts, while the executive authorities had also commenced the reinforcement of the general labour inspectorate. The employers of Guatemala would monitor, through the Board of the General Labour Inspectorate, that the process continued. More transparent procedures had been established for appointments to high-level positions with responsibility for justice and the work of the CICIG was a step in the right direction in combating the climate of impunity. Guatemala was a pioneer in the implementation of real concrete measures adapted to the actual situation, with the support of the international community, with a view to finding a solution to a problem that was threatening to spread throughout the region. It was not true to say that there existed a climate of anti-union violence, but rather that violence affected all sectors equally.

With regard to the need to adopt amendments to bring the national legislation into conformity with ILO Conventions, the speaker recalled the need to seek consensus in tripartite dialogue forums and reaffirmed the will of employers to achieve such agreements. He expressed disagreement with the Committee of Experts concerning the need to amend the legislation respecting the right to strike, which was not regulated by any ILO Conventions. He added that social dialogue was under threat due to the divisions among trade union leaders in the country.

He indicated that union membership and collective bargaining rates needed to be analysed in terms of the population engaged in the formal economy, rather than the whole of the economically active population. Moreover, the membership of representative organizations had fallen throughout the world, and Guatemala was no exception. Figures indicated that anti-union discrimination was practically non-existent in the maquila sector. There had been no unlawful closures as a result of the close collaboration between the private sector and the labour authorities. Finally, he emphasized the progress achieved in the application of justice and the contribution made by civil society to strengthening the rule of law, which was the only way of getting to the roots of the problems highlighted by the Committee of Experts that were difficult to resolve. Problems still remained, but progress was being made to guarantee the full exercise of rights for all citizens.

The Government member of Argentina, speaking on behalf of the Government members of the Committee which were members of the Group of Latin American and Caribbean countries (GRULAC), welcomed the information provided by the Government, the magistrates of the Supreme Court of Justice and the social partners. GRULAC noted that the active participation of the Government reflected the political will to resolve the challenges that the country faced in applying the Convention. The speaker welcomed the visit of Mr Valdivieso, accompanied by officials of the ILO, in compliance with the Committee’s 2010 conclusions. The mission’s recommendations should help the authorities to tackle the problems the Government faced. Guatemala needed the support of the ILO and the Committee’s supervisory mechanism should be used to help governments meet the commitments they entered into upon ratification of ILO Conventions. In conclusion, the speaker encouraged the Government and the Office to continue their efforts to ensure the full application of the Convention.

The Government member of Belgium, speaking also on behalf of the Government of Luxembourg, regretted having to repeat the statement he had made in 2010 and expressed his concern in its regard. The Government of Guatemala had, since 1991, been the subject of several observations by the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. The Guatemalan authorities must ensure freedom of association, in direct collaboration with the social partners and with the assistance of the ILO. He welcomed that a Tripartite National Commission for full implementation of the Convention, as well as a roadmap, had been established. The tripartite nature of that Commission must be preserved and if possible encouraged by an inclusive dialogue. Moreover, over the past three years, the number of violent deaths of trade unionists had increased dramatically, in a context of insecurity and increasing violence affecting the whole of the population. The Government of Guatemala must take measures to prevent harassment, persecution and assassination of trade unionists, and to combat impunity. The results of the investigations carried out should be made public. Only through such steps, the Government would prove its political willingness to combat, credibly, violence committed against trade union members and to combat impunity, in accordance with the recommendations accepted by Guatemala within the framework of the Universal Periodic Review by the United Nations Human Rights Council. In conclusion, the speaker reaffirmed the importance of the cooperation between the authorities of Guatemala and the ILO.

The Government member of the United States noted that since 2008, in the context of the Dominican Republic–Central America–United States Free Trade Agreement (DR–CAFTA), her Government was reviewing many of the same issues as the Committee of Experts with regard to Guatemala’s application of the Convention and had engaged extensively with the Guatemalan Government in an effort to resolve the issues raised in a public submission, filed by the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) and six Guatemalan unions, as well as to address systemic concerns about the enforcement of labour law in Guatemala. Although some positive steps had been taken, the Government remained gravely troubled by the overall lack of progress to date. The speaker noted that the Government of Guatemala had acknowledged the serious challenges it faced in effectively protecting the right to freedom of association and had on several occasions availed itself of ILO technical assistance to overcome these challenges. Nonetheless, devastating acts of violence against trade unionists continued; there were numerous shortcomings in the criminal, civil and labour courts that prevented effective enforcement of labour laws; and the situation of impunity remained as serious as ever. In view of these challenges, the speaker once again strongly urged the Government to intensify its efforts, in close collaboration with the ILO and with the full involvement of the social partners, to take the concrete and sustainable measures, which were urgently required, to guarantee freedom of association and the right to organize in Guatemala. Finally, the speaker expressed the hope that the Government of Guatemala would act decisively and without further delay to implement the conclusions and recommendations of the recent high-level mission so as to mark a long-awaited turning point in the application of the Convention in Guatemala and genuine progress toward full respect for the most fundamental of workers’ rights.

The Worker member of the United States recalled that Guatemala was one of the most frequently reviewed countries by the supervisory bodies of the ILO with regard to violations of the right to freedom of association and collective bargaining. For the last 20 years the supervisory bodies had identified and denounced serious, widespread and systematic violations of these fundamental rights and the ILO had sent several high-level missions to Guatemala, the latest one less than a month ago. Despite these efforts, Guatemala could be described as experiencing a near complete breakdown in the systems of labour and criminal justice. Much of this could be attributed to a complete lack of political will and successive administrations, which had together misused millions of dollars in capacity-building funds and technical assistance oriented towards the improvement of labour administration, judicial reforms and enhancing the capacity of public prosecutors to combat violence against trade unionists. With regard to anti-union violence, he recalled that freedom of association could only be exercised in conditions in which fundamental rights, in particular those relating to human life and personal safety, were fully respected and guaranteed. Statistics provided by the ITUC indicated that Guatemala was the second most dangerous country in the world in which to be a trade unionist. Furthermore, statistics provided in relation to the ILO high-level mission indicated that 53 trade unionists had been assassinated during the last five years. The most recent killing had taken place on 26 May 2011, in which Mr Idar Joel Hernandez Godoy, Director of Finance for Izabal Banana Workers’ Union (SITRABI), was killed while driving the union’s truck. During the last five years, three other SITRABI leaders had been murdered and in 1999 five members of SITRABI’s executive board had been forced into exile. In this regard, the speaker noted that despite the establishment of an office of the Special Prosecutor for crimes against trade unionists and journalists in 2002, there had been no progress in bringing the persons responsible for these crimes to justice. Police and department-level prosecutors often failed to undertake competent investigations and too frequently failed to investigate all possible motives, especially ones related to the victim’s trade union activity. This had also been indicated by the high-level mission, which had noted that in recent years there had been a certain tendency among investigators to privilege motives other than trade union activities. This tendency was in his view largely responsible for the 98 per cent rate of impunity in Guatemala. While referring to the Committee of Experts’ observation, he expressed his concerns that the announced budget cuts for the justice system in 2011 would worsen the situation. In conclusion, he urged the Conference Committee to include its conclusions on Guatemala in a special paragraph in its report and called upon the Government of Guatemala to combat the violence which was an impediment to the full and free exercise of freedom of association.

A Worker member of Colombia stated that the case of Guatemala was a serious, persistent and urgent case to which the Government had not provided a serious and convincing reply. It was a case of repeated and systematic non-compliance. The Government had maintained an anti-union policy and had allowed employers to maintain practices aimed at destroying the trade union movement, while the ILO supervisory bodies had been dealing with the case for more than 20 years. These bodies had identified at least 12 kinds of practices which obstructed trade unions’ rights to become established, including as a prerequisite, authorizations for trade union registration; the possibility for employers to challenge the establishment of a trade union; the sale of blacklists of workers who had belonged to unions; the judicial suspension of trade union immunity; the creation of “solidarity organizations” under the control of the employers; the fraudulent closure or change of name of the workplace; and the use of legal proceedings against workers. These practices were based on legislation which was contrary to the Convention and had not been changed, nor were there any government initiatives to change this legislation or to introduce mechanisms to provide protection against such abuses. The result of anti-union policies was that Guatemala had an extremely low rate of trade union membership (less than 2 per cent). He stated that nearly 200 pending applications for the registration of trade unions had received no reply from the Ministry of Labour and that as a result of the imposition of illegal and unfair requirements that delayed the deposit of union statutes more than half of the trade unions established in Guatemala (561 out of 961) had ceased to exist. None of the productive sectors in Guatemala achieved a trade union membership rate of even 1 per cent. Membership rates were as follows: 0.01 per cent in services and commerce; 0.31 per cent in the financial sector; 0.11 per cent in construction; 0.5 per cent in the maquila (export processing) sector; 0.6 per cent in industry; and 0.47 per cent in agriculture. The overall rate of unionization did not exceed 0.33 per cent. The Single Confederation of Workers of Colombia (CUT) regretted that a legitimate and autonomous trade union federation such as the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) was exposed to constant attacks for its repeated denunciation of violations of international labour standards, especially freedom of association. The speaker asked the Committee to remind Guatemala that it was unacceptable to exclude workers associated in different federations from social dialogue on grounds of submitting complaints and defending the working class.

The Government member of Germany expressed regret at the continuing violations of trade unions’ rights. While he welcomed the efforts made by the Government of Guatemala, he hoped that the Government would take note of the discussion which took place before the Conference Committee and act accordingly, especially with regard to improving the administration of justice.

The Worker member of the Bolivarian Republic of Venezuela expressed solidarity with the workers of Guatemala and, in particular, organizations such as the MSICG, in the face of acts of harassment, intimidation and persecution. She expressed particular concern at the serious and repeated violations occurring in export processing zones and provided the following data gathered by the MSICG from official records: of 90,000 workers in the maquila sector, only 488 were unionized, spread among six unions, all in precarious situations, and only three of which had managed to negotiate collective agreements, and they had done so merely for the sake of appearance, as the agreements either restricted the rights set out in legislation, or at best, restated them. She underlined the fact that, between 2006 and 2009, 71 maquila closures had been requested from the labour inspectorate and in the majority of cases, employers had not fulfilled their labour obligations. Although the Government had claimed to have imposed penalties on certain enterprises by suspending their tax benefits, in reality, the benefits enjoyed by these enterprises had only been suspended once the enterprises were no longer active. There had in fact been an increase in the tax benefits provided for by Decree No. 29-89 through an initiative promoted in Congress. She referred to the inclusion of representatives of the judicial authorities in the Government delegation, pointing out that one of the most serious issues was the systematic failure of the justice system. In that regard, she recalled that the MSICG had submitted proposals in that respect during the mission that had taken place in May 2011, and that its proposals had been intended to guarantee rapid and straightforward access to the competent tribunals for protection against acts that violated fundamental rights. She mentioned the significant judicial backlog and the fact that only 1 per cent of cases, brought with the aim of exercising the right to strike, resulted in the strikes in question being declared legal. It was being claimed that abuses of the amparo mechanism were causing the judicial backlog, but it was most often the Government of Guatemala, in its capacity as an employer, that submitted amparo claims. The Government brought 40 per cent of amparo cases, while private employers brought 36 per cent. The Committee had requested an increase in the resources allocated to the justice system, but the opposite had occurred, and the Supreme Court of Justice itself had stated, on 12 May 2011, that the 2011 budget for the justice system had suffered enormous cuts, which meant that many judicial functions might have to be put on hold. She concluded by requesting that, in view of the Government’s lack of political will and refusal to cooperate over many years, the Committee’s conclusions should feature in a special paragraph.

The Worker member of Uruguay said that the members of the Inter-Union Assembly of Workers – National Convention of Workers (PIT–CNT) deplored the fact that the absence of freedom of association in Guatemala was so serious that the MSICG – which represented over 225,000 paying members and, as a representative autonomous confederation, was the principal complainant against Guatemala before the ILO’s supervisory bodies – had been identified by the Government in its 2010 reports as seeking to destabilize the country and had been accused of terrorism on the sole grounds of having denounced the absence of freedom of association in the country. He requested that in the Committee’s conclusions the Government be requested to provide protection for the MSICG and its work teams and to put an end to the repression and criminalization of its activities simply for upholding freedom of association. If trade unions were to function in a climate of freedom of association, they had to be able to enjoy all civil liberties in full respect for human rights, especially as they related to people’s life and safety. The fact that such a situation existed meant that terrorist practices and activities were being protected or concealed, which was tantamount to state terrorism on the part of the very institution that should be enforcing those rights rather than denying them. There were other trade union rights that were being trampled on through the Government’s interference, its failure to enforce labour legislation, the lack of any effective judicial procedures and the denial of the workers’ right to establish trade unions of their own choosing. Instead, there was an obligation on the Government to promote freedom of association and the establishment of trade unions by taking steps to facilitate the exercise of those rights. That was not how the Government of Guatemala was behaving.

The Government member of Norway recalled that the Government of Guatemala had, on several occasions, appeared before the Conference Committee with regard to violations of the Convention. On these occasions, his Government, along with other countries, had urged Guatemala to take measures to bring its law and practice in line with the Convention. In this regard, the speaker associated himself with the statement made by the Government member of Belgium.

Another Worker member of Colombia said that, for all the Government’s assertions of its good intentions, it should not be forgotten that for the past 15 years the Committee had been unable to obtain any reliable indication that it could look forward to legislative changes that might be conducive to the full exercise of workers’ rights as they related to freedom of association. As early as 1998, the Committee of Experts had called on Guatemala in no uncertain terms to bring its legislation into line with international labour standards, and for the workers it was unacceptable that such a request be ignored. It was unfortunately obvious that there were still restrictions in terms of freedom of association, collective bargaining and the right to strike, which had been criminalized. That was why union membership was so low that those who claimed that the rule of law existed in Guatemala should be ashamed. A State that failed to respect these rights was a failed State that was doomed to failure; there could be no democracy if workers’ rights were not respected. He wondered: (1) how much longer the dilatory tactics of successive Guatemalan governments were going to continue; (2) why the current Government had not submitted the relevant Bills to Congress; (3) whether a level of unionization of under 2 per cent was something that the Government and the employers could be proud of; and (4) how the Government could hope to establish the rule of law in a country that did not respect workers’ rights even minimally. The speaker recalled that the high-level mission that had visited Guatemala in May 2011 had clearly indicated its concern at the legislative situation in the country, and especially the criminalization of strike action. Although he hoped that the Committee would see genuine progress in 2012, he requested that the conclusions of the Committee be included in a special paragraph in its report.

The Worker member of Brazil expressed his support for the trade union movement of Guatemala. The absence of democracy could well be one of the causes behind the murders of trade unionists in Guatemala. The report of the Committee of Experts gave concrete and alarming examples of situations encountered by trade unionists: 47 trade unionists assassinated between 2007 and 2010; acts of intimidation and acts of violence committed against trade unionists and trade union offices, as well as the absence of negotiations with the enterprises of the country, were all disgraceful situations for Guatemala and for Latin America. In that connection, special protection had to be put in place for trade unionists and ensured by the Prosecutor responsible for human rights. Furthermore, it was important for all trade unions of Guatemala to participate in all dialogue forums as it was equally important to avoid the discrimination of the trade union movement of the indigenous peoples so as to ensure its participation in social dialogue. For it was not up to the Government, nor the employers, to choose their interlocutors in social dialogue as the latter should be engaged with all the social movements and all the trade union movements of the country.

An observer representing the World Federation of Trade Unions said that the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), an independent trade union confederation representing more than 255,000 workers, regretted the fact that the Government had not provided the Committee with a reply to the comments made by the MSICG in 2010, and further regretted the fact that the Government was failing to respect the ILO supervisory bodies and those present on the Committee, displaying no political will at all. She illustrated this with the following examples: (1) despite the Committee’s request to the Government to increase the budget allocations for labour inspection, the Office of the Attorney-General, the police and the Supreme Court of Justice, the Supreme Court had revealed the fact that the justice system had suffered unthinkable cutbacks; (2) in 2010, the Government had informed the Committee of an increase of 30 labour inspectors, but the number of inspectors had fallen from 197 to 185; (3) whenever the State was being questioned about anti-union violence, it created or suppressed the unit for crimes against trade unionists or the Office of the Attorney-General to suit itself; (4) the Government cited as a step forward the Ministerial Agreement No. 106-2011, issued on 3 March 2011, which, according to the Government, would allow the police, together with labour inspectors, to enter a workplace if an employer denied access for three days, but only if there were signs of the worst forms of child labour, if maquilas were to be closed, or if more than ten workers had been dismissed. She said that the aforementioned Agreement represented a serious setback and a flagrant violation of section 281 of the Labour Code, which covered the obligation of the labour inspection services to enter premises, accompanied by the police, at any time if an employer refused access and in any circumstances; (5) the Government had stated that it had recovered large sums of money for workers dismissed from maquilas but, between 2005 and 2010, workers had lost more than 73 per cent of the labour benefits to which they had been entitled because of failures on the part of the labour inspection services; (6) with regard to maquilas, in the case of a certain enterprise, the public prosecutor for human rights had identified violations of workers’ rights and reasonable indications of crimes by labour inspectors, but nothing had been done about it; and (7) the State continued to point to the creation of committees for legislative reforms that never materialized, despite the creation of hundreds of committees. Lastly, she requested that the conclusions in the case should be included in a special paragraph as an act of justice for all the workers who had become victims of anti-union violence in its various forms, including murder, dismissal, and being unable to find work because of having formed a trade union.

The Government representative reaffirmed that the Government of Guatemala was not tolerant towards, nor did it endeavour to incite individuals to threaten, physically harm or kill any citizen of Guatemala, targeting trade unions or union premises, and that it took seriously the duty of the State to safeguard private property as the right of the individual. He reiterated that the Office of the Public Prosecutor would undertake an internal restructuring with the creation of the Special Investigation Unit into Crimes against Trade Unionists. He added that the mission that had recently visited the country had observed in its conclusions that violence was generalized and that it affected trade unionists, employers and all Guatemalan citizens, and that there was not therefore any stigmatization of workers. The situation was of concern to the Government and it was making efforts to resolve it, as indicated by the magistrates who were present. With regard to the legitimacy of the Tripartite Commission for International Affairs, he indicated that its representative status could not be challenged, as the Ministry of Labour had published in the newspaper with the largest circulation the call for employers and workers on an equal footing to propose their representatives in a participatory manner. With reference to the number of labour inspectors, he indicated that there were now 214, which showed that the promise to increase their number had been kept. He noted that efforts were being made gradually, such as, for example, the changes in the Office of the Public Prosecutor. He expressed concern that the efforts that were being made by the Government could be described as a joke when they consisted of changes that required major efforts, with the collaboration of the ILO and the assistance of other organizations, and that some of them were the result of agreement reached in the Tripartite Commission. The work of the Commission that would revise the legislation would include following up the draft reforms to the Labour Code formulated by the Tripartite Commission with ILO assistance, which were known as the “Marin Draft”. He called for the Committee to support the Government, which he said would continue its efforts for the full application of the Convention. He added that a new generation of citizens of Guatemala were taking up high-level positions and that they had a vision of the country in which all sectors had to work together, especially in relation to national production, which involved a collective vision of progress.

The Employer members referred to the seriousness of the issue and expressed the unanimous concern of the Employers’ group. The Government of Guatemala had spoken of gradual changes, but it needed to demonstrate a more evident political will to strengthen the country’s institutions and to assess the progress made. According to the Government there had already been some progress, such as the creation of a special investigation unit and, hopefully, the provision of a budget and the adoption of measures to speed up procedures; but the Employer members hoped that the Government would take much more decisive action to put a stop to anti-union violence. They trusted that the efforts deployed in the Committee would not mean slowing the country’s economic development and investment and that the necessary legislative changes would come about through dialogue.

The Worker members welcomed the comments and encouraging remarks made by the different speakers towards the workers of Guatemala. All the legislative reforms recommended by the various ILO missions, the Committee of Experts, and the Conference Committee needed to be undertaken with the attentive assistance of the Office, and needed to have as their main objective the bringing into conformity of the country’s practice with Conventions Nos 87 and 98, and to guarantee workers that they could establish trade unions in full freedom, without any threat or pressure, in a climate free from fear. The Government also needed to undertake additional reforms on the following points: (1) a significant increase in the budget allocated to the Office of the Public Prosecutor, the Supreme Court of Justice, the police, and the labour inspectorate so as to make the action of the judiciary more rapid, effective, and independent; (2) the implementation of a profound fiscal reform so as to ensure the rule of law and strengthen the institutions responsible for the observance of human rights and trade union rights; (3) the effective reinstatement of all dismissed workers who won their appeals; (4) the guarantee of the ending of impunity so that perpetrators, instigators and accomplices of offences committed against persons defending trade union rights were arrested, brought to justice and convicted, which would mean that the acts committed against trade unionists were no longer systematically categorized as common law offences. Having taken due note of the good will expressed by the Government to establish a constructive and participatory dialogue, they emphasized the fact that all trade unions of Guatemala should be invited, especially the CUSG, CGTG and UNSITRAGUA, and that the invitation should be made public. They indicated that they trusted that the next report of the Committee of Experts would note the real progress on the different points raised. That would require the Government to embark rapidly on the necessary reforms with the relevant institutions, especially in consultation with workers’ organizations. In the meantime, the conclusions of the Conference Committee on the present case should appear in a special paragraph of its report.

The Employer members agreed with the proposal of the Worker members to include the conclusions in a special paragraphs of the Committee’s report.