Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Other comments on C087

Observation

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Comments by workers’ and employers’ organizations

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 31 July 2012, referring to matters already under examination by the Committee, and particularly the murder of seven trade union leaders and two trade union members between January and October 2011. The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Unions’ Unity of Guatemala (CUSG), dated 30 August 2012, which refer in particular to numerous allegations of violations of trade union rights in practice, in both the private and public sectors, and to acts of violence against trade unionists, including the murder of a trade union leader in August 2012 (the Committee observes that some of the allegations have been submitted to the Committee on Freedom of Association). The Committee also notes the comments of the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) of 31 August 2012 (the MSICG subsequently sent other comments, which were received on 10 September and 3 October 2012, outside the time limits for receiving them) which refer to the murder of a trade union leader in June 2012, allegations concerning acts of violence against leaders of the MSICG, the arrest and the initiation of prosecutions against trade union leaders in a context of the criminalization of the exercise of trade union rights and the policy to weaken the Ministry of Labour and the labour inspectorate. The MSICG also alleges numerous violations of trade union rights in practice, in the public and private sectors, including in maquilas (export processing zones) and industrial free zones. The Committee requests the Government to refer the matters raised by these organizations to the National Tripartite Commission and to provide information in this respect, particularly on the decisions taken.

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

Complaint under article 26 of the ILO Constitution

The Committee notes that a group of Workers’ delegates to the 101st Session of the International Labour Conference submitted a complaint in June 2012 under article 26 of the ILO Constitution against the Government of Guatemala for failure to comply with the Convention.

The Committee notes the Government’s indication that the President of the Republic and the authorities have observed with great concern the claim made by the workers, which is based on events that have been occurring for approximately the last 25 years. It adds that the current Government, which took office in January 2012, has adopted measures and taken firm action for transformation and change in the management of labour matters, and in this context has invited the Director-General of the ILO and the Director of the International Labour Standards Department to visit the country and support the efforts that are being made by the new Government for the implementation of the Convention. The Committee notes the Government’s indication that during its first months in office it has made progress in the following principal areas: the implementation of the new national policy for safe, decent and quality employment, and the policy for permanent social dialogue; the budgetary, normative and institutional strengthening of the Ministry of Labour and Social Welfare, including the extension of the coverage of the General Labour Inspectorate; the conclusion of an agreement between the Office of the Attorney-General of Guatemala and the International Labour Standards Department of the ILO establishing relations of cooperation and the exchange of information on matters covered by the ILO supervisory bodies; the broadening of national tripartite dialogue, including the trade union federations and confederations which have been excluded in the recent past, with as its first result the conclusion of the Memorandum of Understanding for the cooperation framework with the ILO, the Decent Work Programme and the Framework Implementation Plan; and coordination between state institutions to give priority to complaints concerning acts of violence against trade unionists and impunity which, unfortunately, also affect the population as a whole.

Acts of violence against trade unionists and the situation of impunity

The Committee recalls that for several years it has been noting in its observations serious acts of violence against trade unionists which have gone unpunished and has requested the Government to provide information on developments in this regard. The Committee notes that in its comments the ITUC, in the same way as the national trade union confederations, continue to highlight serious acts of violence against trade union leaders and members in recent years, including in 2011 and 2012, and describe a climate of fear and intimidation with a view to dismantle existing trade unions and preventing the establishment of new ones. The organizations also emphasize the deficiencies of the labour inspection services and the crisis in the judicial system. The Committee has noted that in recent years many acts of violence have been committed against trade union leaders and members, including murders, death threats and acts of intimidation against trade union members. The Committee observes that the Committee on Freedom of Association (in Cases Nos 2445, 2540, 2609 and 2768) noted with concern that the allegations levelled in the context of its proceedings were extremely serious and included many murders and acts of violence against trade union leaders and members. The Committee recalls that the high-level mission which visited Guatemala from 9 to 14 May 2011 reported as follows:

The mission wishes to recall that the problems of violence referred to by the CEACR are the following:

– alleged murders of trade union leaders and members over the past five years: 2007: 12; 2008: 12; 2009: 16; 2010: 10; and 2011: two up to the month of May (a few days after the mission, a trade union leader of the SITRABI was murdered);
– death threats, abductions, raids, etc., alleged over the past four years:

2008: eight death threats, two attacks against the homes of trade union leaders, a raid against trade union premises and a raid against the home of a trade union leader, and two attempted murders of trade union leaders;

2009: 17 death threats against trade union leaders and executive committees, eight cases of physical assault against trade union leaders and members; an attack against trade union premises and an attack against the home of a trade union leader; and a temporary abduction of a trade union leader; and

2010: four death threats, an attempted murder of a trade union leader, an abduction, involving torture and the rape of a trade union leader, an attack against trade union premises, an attack against the home of a trade union leader, and physical assault against a trade union leader.

The mission emphasized to all those with whom it spoke the gravity of the allegations and the figures referred to above, and recalled during its meetings the relevant principles of the supervisory bodies, and particularly that trade union rights can only be exercised in a climate that is free from violence, and it sought solutions to the matters raised by the Committee. The mission also emphasized that the killing or serious injury of trade union leaders and trade unionists requires the institution of independent and expeditious judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events.

The mission observed that the situation of violence is generalized, affects trade unionists, employers and other categories and results in around 10,000 violent deaths a year (according to data provided by the Presidential Coordinating Commission for Executive Policy in the Field of Human Rights (COPREDEH)) in a country of 11,237,196 inhabitants (according to data provided by the Ministry of Labour). The murder figures for trade union leaders over the past five years show that they are a particularly vulnerable category, although at the present time the most affected sector is that of bus drivers and passengers (on the last day of its work, the mission was able to observe this directly by witnessing an attack with firearms on a bus in which five persons died). The mission was informed by various sources that the main perpetrators of acts of violence are related to common crime, organized crime and, recently, drug trafficking, a crime that has been spreading particularly rapidly in recent years in Guatemala and other Central American countries. The mission was able to observe that a large number of people in the country carry weapons. The trade union confederations and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) emphasized the weakness of the security services and the judicial system, their concern at the level of violence and their desire to contribute to the eradication of violence and the restoration of the rule of law. In this context, at the beginning of its work, the mission found that the authorities were only in a position to provide information on investigations concerning a small number of the trade union leaders and members who had been murdered. In various meetings, including those held with certain magistrates and other authorities, the mission was informed that certain murders might be of an anti union nature. The mission observed that only once investigations have been conducted and those responsible for carrying out, planning and instigating the acts of violence against trade union leaders and members could their anti-union nature be ascertained, and that for that reason it is urgent to conduct expeditious and exhaustive investigations in all cases. The lack of full and up-to-date information on developments in the investigations concerning trade unionists was a matter of concern for the mission, as was the lack of coordination between State services following up these crimes. For this purpose, the Tripartite Commission on Labour Affairs called for the restoration of the specialized prosecution service for crimes against trade unionists and asked the mission to express its concern to the Office of the Attorney-General in relation to this situation. Sharing these concerns, the mission requested the Public Prosecutor to establish a special prosecution service responsible for investigating these crimes and for an acceleration of the investigations of the 52 murders denounced. The Public Prosecutor appointed a few months ago, with a background in the field of human rights, welcomed these proposals, although the proposal for the restoration of the specialized prosecution service was subject to the outcome of the budget discussions in the Congress. The mission also called on the International Commission against Impunity in Guatemala (CICIG) to collaborate with the Office of the Public Prosecutor to investigate and shed light on these cases. The mission is pleased to note that it received an affirmative response from both parties and the undertaking to carry out these investigations. The mission indicated to the authorities the importance that these investigations were undertaken taking duly into account the alleged anti-union nature of the cases, as in recent years there has been a certain tendency in investigations to give priority to other motives, and particularly those based on “passion”. The Public Prosecutor expressed great interest in the possibility of concluding a cooperation agreement with the ILO, which would include activities to provide training to prosecutors on typical contexts of anti-union violence and the factors which give rise to such violence (the Public Prosecutor will soon contact the ILO for this purpose). The mission also suggested that representatives of the Office of the Attorney-General should participate regularly in the meetings of the Tripartite Commission on Labour Affairs with a view to providing information on progress in the investigation of cases of murders of trade union leaders and members. The Office of the Attorney-General and the Tripartite Commission on Labour Affairs welcomed the proposal. The mission noted the urgent call by society, including employers’ and workers’ organizations, to address more decisively the impunity and corruption existing in the country and considers that the authorities need to devote much higher levels of resources and take effective measures to eradicate the corruption that permeates the administration of justice. At present, the impunity rate is 98 per cent, according to official sources. The CACIF and the trade unions agree on the need for criminal and labour court procedures concerning anti-union practices to be expeditious and effective.

The Committee also notes with deep concern that, according to the ITUC and the trade union confederations, since the visit by the mission murders have continued in 2011 and 2012.

The Committee notes the Government’s indication in a communication addressed to the Committee on Freedom of Association and in its report to the Committee of Experts that: (1) the Office of the Attorney-General, in compliance with its constitutional mandate to ensure strict compliance with the laws of the country and its functions in relation to criminal prosecution, has been a member this year of the working group convened by the Ministry of Labour, together with the judicial authorities and the Ministry of Foreign Affairs, to monitor the application of the Convention; (2) the Office of the Attorney-General also accepted the invitation by the Tripartite Commission on International Labour Affairs, in which representatives of trade unions and representatives of employers participate, and the Ministry of Labour, to provide information on the progress in the cases denounced at the national level and with the ILO; (3) a group of investigators and support staff were recruited with a view, under the direction of the prosecutors responsible for each case, for pushing forward the investigation of the cases so that they can be resolved in a reasonable time and common factors identified in each case; (4) an overall study was undertaken of all the cases to establish whether there existed a common objective of eliminating trade union leaders; (5) the 58 cases under examination are distributed among 25 offices of public prosecutors, with the majority being assigned to the special prosecution service established to investigate crimes against trade unionists; (6) the examination of the cases found that 32 victims could be trade union members or leaders, while in 17 cases there is no documentation or evidence to prove that the persons concerned were members of a trade union, five cases are related to persons connected with municipal markets and four were members of community organizations; (7) in 45 cases, the motive for the murders is related to common crime, in two cases it was found that the death had its origins in the trade union struggles in which the victims were engaged, four died in relation to social claims, five persons perished due to confrontations between municipal authorities and market stallholders, one person died for political reasons and one in the context of the intervention by the state security forces; (8) of the 58 cases, rulings have been handed down or progress is being made in 24; (9) as a demonstration of the will of the Government and the Office of the Attorney-General, on 10 July a protocol agreement was concluded between the Office of the Attorney-General of Guatemala and the International Labour Standards Department of the ILO with the principal objectives of establishing cooperative relations, and a workshop was held on international labour standards, with emphasis on freedom of association, collective bargaining and impunity; the workshop was attended by the Sub-secretariat for Political Crime of the Office of the Attorney-General, seven district prosecutors, a branch prosecutor, nine investigators and 15 auxiliary investigators from throughout the Republic; and (10) since the establishment of the special investigation service for crimes against trade unionists, measures have been taken to: (i) receive complaints on the premises of the investigation service; (ii) security measures are granted immediately to trade unionists lodging a complaint of a threat; (iii) in the event of murders of trade union members, extended competence is requested so that these cases can be referred to higher-risk courts; and (iv) in the event of raids on the residences of trade union members or trade union premises, security measures are requested from the Ministry of the Interior around the locations where they are required.

The Committee notes all of this information. The Committee welcomes the Government’s indications concerning the re-establishment of the special investigation service for crimes against trade union members. The Committee also welcomes the fact that, further to the conclusions of the high-level mission which visited the country in 2011, a cooperation agreement has been concluded between the Office of the Attorney-General and the ILO and that a first activity for the training of investigators has already been undertaken in relation to the typical context of anti-union violence and the factors giving rise to such violence. The Committee hopes that, in accordance with the cooperation agreement, this type of activity will continue to be carried out. The Committee once again draws the Government’s attention to the principle that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessively slow proceedings and the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which aggravates the climate of violence and insecurity, which is extremely damaging to the exercise of trade union rights and incompatible with the requirements of the Convention.

The Committee once again deplores the murders of trade unionists and other acts of anti-union violence and once again firmly requests the Government to: (1) bring to justice those responsible for the violence in order to counter impunity; (2) ensure the protection of trade unionists under threat of death; (3) convey to the Office of the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate all murders and crimes committed against trade unionists so as to punish the perpetrators; (4) ensure the allocation of sufficient resources for these objectives with the consequent increase in human and material resources, and ensure effective coordination between the various state bodies which may be called upon to intervene in the judicial system, and to provide training for investigators; and (5) as affirmed by the new Government, to give absolute priority to these matters in government policy.

The Committee expresses the firm hope that the Government will take all the necessary measures to guarantee full respect for the human rights of trade unionists and that it will continue to provide protection measures to all trade unionists who so request. The Committee firmly hopes that the investigations which, according to the Government, are being carried out by the Office of the Attorney-General, will be finalized in the near future and will result in the determination of those responsible for acts of violence against trade union leaders and members, their prosecution and punishment in accordance with the law. The Committee requests the Government to provide information on any developments in this respect.

Legislative problems

The Committee recalls that for several years it has been commenting on the following provisions, which raise problems of consistency with the Convention:

-restrictions on the freedom to establish organizations (the need, under section 215(c) of the Labour Code, to have 50 per cent plus one of those working in the occupation to establish industry trade unions) and delays in the registration of trade unions, or the refusal to register them. The Committee notes the Government’s indication that: (1) this provision is based on article 102(q) of the Political Constitution, which recognizes the right of workers to establish organizations freely; (2) the constitutional and ordinary legislation protect and recognize the freedom to establish organizations and do not restrict the establishment of industry trade unions, and this section sets out clear rules for the establishment of industry trade unions, based on a qualified majority that is sufficiently representative, which ensures legal security and representativity; (3) the reasons set out comply with the need for the negotiation of the collective agreement, and this section guarantees the majority required for the direct negotiation of the collective agreement; (4) there is no discrimination and no requirement for prior authorization for the establishment of an industry trade union, that is to say that the wish of industry groups to associate is not prohibited; (5) the absence of industry trade unions is due to the lack of interest (for example, for economic reasons), and not to legal restrictions; and (6) in light of the above, effect is given to Article 8 of the Convention. While noting this information, the Committee reiterates that the requirement of a minimum number of members is not in itself incompatible with the Convention, but that the minimum number should be kept within reasonable limits so as not to impede the establishment of organizations. The Committee considers in this respect that the majority required in the above section is too high and could therefore hinder the establishment of an industry-level trade union if the workers decided to establish one;
-restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to work in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code). The Committee takes note of the Government’s indication that the legislation is inclusive as it recognizes as being of Guatemalan origin persons originating from the Federation of Central America, for which reason it does not contravene the right to the free choice of trade union leaders, as persons of various nationalities may be elected. While noting that workers who are nationals of the countries of Central America can hold trade union office, the Committee recalls that the national legislation should allow foreign workers, of whatever nationality, to have access to trade union office, at least after a reasonable period of residence in the host country;
-restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are not declared by the majority of those casting votes, but by a majority of the workers); the possibility to impose compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purposes of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); and the labour, civil and penal sanctions applicable in the event of strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);
-the Civil Service Bill: in its previous observation, the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee noted previously the Government’s indication that the Bill had been withdrawn and that in July 2008 and inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and
-the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or employment benefits other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee noted previously that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this case law has not been given effect in practice, according to technical assistance reports and the comments of the MSICG.

In this respect, the Committee recalls the conclusions of the 2011 high-level mission, which are as follows:

The mission regrets to note that no progress has been achieved since the previous year in relation to the legislative reforms requested by the CEACR and that the Tripartite Commission on Labour Affairs has not submitted any draft legislation to Congress. The mission reiterated the importance of bringing the legislation into full conformity with the Conventions on freedom of association. The mission forwarded the comments of the CEACR to the Labour Commission of the Congress. The Labour Commission of the Congress expressed the wish that the Tripartite Commission on Labour Affairs should enter into contact with it regularly to address these matters, and the Tripartite Commission agreed. The mission suggested the possibility to the Labour Commission of the Congress to conclude an agreement with the ILO in relation to training on international labour standards and to improve their application; this proposal was received with great interest and it was indicated that the matter would be submitted in the near future to the competent authorities of the Congress. With regard to the situation of the many workers in the public sector engaged under contracts under items 029 and others of the budget, the mission noted that, according to the Supreme Court of Justice, the case law recognizes the right of these workers to organize. The mission also noted that in practice these workers join organizations and in certain State institutions represent 70 per cent of the staff. The mission suggested that the authorities, by means of a circular or a resolution, should remove any doubt on the right to organize of workers engaged under contracts under item 029 of the budget. However, the Minister of Labour expressed reservations for economic and legal reasons.

The Committee noted previously that the Government had established an inter-institutional commission to prepare a Bill on the outstanding legislative matters.

The Committee recalls that, in its 2011 conclusions, the Conference Committee expressed the hope that the Government would be in a position to report substantial progress in the very near future. The Committee regrets to note that, despite requesting improvements in the legislation for many years, there has not been significant progress in the legislative reforms requested, and it considers that much more effort will need to be made. The Committee firmly hopes that, with ILO technical assistance, the Government will be in a position to provide information in its next report on positive developments in relation to the various matters referred to and that tangible progress will be achieved in the near future.

Registration of trade unions. The Committee recalls that in its previous comments it referred to the conclusions of the 2011 high-level mission concerning the obstacles to the registration of trade unions, which read as follows:

The mission emphasized to the Government the need for a rapid solution concerning the registration of the remaining organizations. The mission also suggested the establishment of a proactive registration procedure enabling trade unions with the authorization of their assembly to correct directly in the Ministry legal problems arising during the registration process.

The Committee once again invites the Government to discuss this matter in the Tripartite Commission with a view to adopting an approach that allows the very rapid resolution with those establishing trade unions of any substantive and formal problems that may arise and facilitates in so far as possible the registration of trade unions.

Other matters

The maquila sector. For years, the Committee has been noting the comments of trade unions concerning serious problems in the application of the Convention in relation to trade union rights in the maquilas. The Committee recalls that in its previous comments it noted the conclusions of the 2011 high-level mission, which read as follows:

With regard to the situation of trade unions in the maquila, the mission noted the indication by the authorities that there are 740 enterprises in the sector, six unions and three collective contracts covering 4,600 workers out of a total of 110,000 workers. The mission notes that the number of workers in the maquila has fallen considerably in relation to previous years (around 300,000). The mission also notes the indication by the authorities that it is a sector which has been subject to special attention to verify compliance with labour rights and that there is a special unit of the labour inspectorate that is particularly active in addressing problems in the maquila. The mission considers, based on meetings with trade union federations, which are very concerned at the low level of unionization in the maquila, that training activities on freedom of association and collective bargaining should be intensified in the maquila sector and it encourages the Government to have recourse to ILO technical assistance in this respect.

The Committee once again requests the Government to continue providing information on the exercise in practice of trade unions rights in maquilas (number of trade unions, their membership, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions taken by the authorities and number of inspections). The Committee expresses the hope that the Government will continue to benefit from ILO technical assistance so that full effect is given to the Convention in the maquilas and it requests the Government to provide information on this subject. The Committee requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector regularly to the National Tripartite Commission and to provide information in this regard.

National Tripartite Commission. In its previous comments, the Committee requested the Government to ensure that the composition of the workers’ representation on the Tripartite Commission is based on strict criteria of representativity and it asked the Government to take the necessary measures for that purpose. The Committee welcomes the Government’s indication that the trade union federations and confederations that had been excluded recently have now been included.

Statistics and other matters. The Committee noted previously that, according to the report of the 2011 ILO high-level mission, it would be useful for the Government to provide clearer statistics confined to trade unions that are in operation, and not those that have ceased to operate, and making a distinction between the public and private sectors, with a view to indicating the level of trade union membership and the coverage of collective bargaining in both sectors. The Committee considers that such data can also be useful in determining the representativity of trade union confederations. The Committee once again requests the Government to produce statistics on the unionization rate and the coverage of collective bargaining and on other aspects of trade union activities.