Observación (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

1. The Committee notes that the Governing Body approved in March 2003 the conclusions and recommendations of the tripartite committee appointed to examine a representation alleging non-observance by Guatemala of Convention No. 144 (document GB.286/19/4, March 2003).

2. In its conclusions, the tripartite committee recalled that the fundamental obligation laid down by Convention No. 144 is contained in Article 2, paragraph 1, of that instrument. According to that provision, every State party "undertakes to operate procedures which ensure effective consultations, ... between representatives of the government, of employers and of workers". The tripartite committee referred to paragraph 29 of the General Survey of 2000 in which the Committee pointed out that the consultations required under the terms of the Convention are intended, rather than necessarily leading to an agreement, to assist the competent authority in taking a decision. For the consultations to be meaningful, they should not be merely a token gesture, but should be given serious consideration by the competent authority. Although the public authorities must undertake consultations in good faith, they are not bound by any of the opinions expressed and remain entirely responsible for the final decision.

3. The tripartite committee also cited the direct request of 2001 to Guatemala, in which the Committee observed that the regulation governing the functioning of the Tripartite Commission on International Labour Issues guarantees equality between the parties since the agenda, discussion materials, conclusions and recommendations are arrived at through absolute consensus. The Committee had observed earlier that the requirement of absolute consensus could lead to a reduction in the effectiveness of the consultations required by the Convention - and the tripartite committee likewise deemed it appropriate to stress that the requirement of absolute consensus, as set out in the Standing Orders of the Tripartite Commission, may have reduced the effectiveness of the consultations it carried out in 2000.

4. Indeed, in its General Survey of 2000, the Committee emphasized that "the representatives of employers and workers who participate in the consultation must in no way be bound by the final decision or position adopted by the Government. It would indeed be contrary to the principle of autonomy of employers and workers with regard to governments, which is applied in the work of the ILO’s bodies, if they were bound by the government’s position simply because they had been consulted". The Committee further observed that: "In order to be ‘effective’, consultations must take place before final decisions are taken ... The important factor here is that the persons consulted should be able to put forward their opinions before the government takes its final decision. The effectiveness of consultations thus presupposes in practice that employers’ and workers’ representatives have all the necessary information far enough in advance to formulate their own opinions." (General Survey, paragraph 31.)

5. The tripartite committee found, in the light of the available information, that the difficulties that had arisen in 2000 and that had diminished the effectiveness of tripartite consultations, had been overcome.

6. The tripartite committee expressed the hope that the Government and the social partners, in accordance with their national practice, would continue their efforts to promote social dialogue and tripartism in Guatemala. It also referred to the resolution on tripartism and social dialogue adopted by the Conference at its 90th Session (June 2002), which emphasizes that if tripartite consultations are to succeed, the participants must demonstrate the required aptitude for social dialogue (attentiveness to the positions of the other parties, respect for all participants, adherence to commitments made, and willingness to resolve conflicts).

7. On adopting the tripartite committee’s report, the Governing Body invited the Government of Guatemala to report to the Committee of Experts on the activities of the Tripartite Commission on International Labour Issues, providing specific information on any progress made, with the technical assistance of the Office, in holding tripartite consultations on matters relating to Convention No. 144.

8. In the light of the foregoing, the Committee takes note of the Government’s detailed report, received in August 2003. The Committee refers in particular to the assistance afforded to the social partners by the Office under the project "Tripartism and social dialogue in Central America: Strengthening the processes of consolidating democracy" (PRODIAC). The Government also highlights the assistance provided by the San José subregional office in the preparation of a poverty reduction strategy, which has enabled the social partners to formulate a joint proposal for employment creation.

9. With regard to the activities of the Tripartite Commission, the Government has provided copies of letters convening 25 meetings during the period from July 2002 to July 2003. It has also supplied detailed records of 12 of the meetings that took place during that period. The Committee notes that in the course of the meetings held in the Tripartite Commission, there were consultations on most of the items listed in Article 5, paragraph 1, of the Convention.

10. In a letter of 26 May 2003, representatives of organizations of workers and employers which sit on the Tripartite Commission stated that the Government had failed to meet a commitment, undertaken at the meeting of 24 April 2003, to discuss at the meeting of 8 May 2003 draft reforms on sexual harassment, child labour, domestic work and global termination indemnities (indemnizacion universal). Their objection is that the Government submitted its draft to Congress on 7 May 2003, thus precluding the possibility of discussing and reaching agreement on these issues. These organizations stated that they wished to draw the ILO’s attention to repeated violations of Convention No. 144 by the Government of Guatemala, so that the Government might be urged to take the necessary steps to remedy the situation in order to strengthen the tripartite social dialogue process.

11. The Committee notes that in December 2002 the three sectors agreed to set up a "tripartite subcommission on international issues for the study and analysis of labour reforms" ("the Subcommission") which would discuss a number of pending amendments to align the national legislation with ratified Conventions pertaining to freedom of association. The government sector wished to give the priority to the Labour Code reforms so that proposals could be sent to the Congress of the Republic. The employers’ sector preferred not to rush matters in order to avoid repeating past experience (record of the Tripartite Commission’s meeting of 27 February 2003).

12. At a meeting of the Subcommission held on 5 March 2003, the three sectors agreed to prepare a technical draft with the various labour reform proposals. The Government submitted to the meeting its proposal to amend eight articles of the Labour Code. After four unproductive meetings of the Subcommission, at a meeting of the Tripartite Commission held on 10 April 2003, the government sector announced a deadline (15 May) for the submission of proposals.

13. At a meeting of the Subcommission held on 23 April 2003, the workers’ sector tabled proposals on sexual harassment, child labour and domestic work, and expressed its opposition to the Government’s proposal on global termination indemnities. At a meeting of the Tripartite Commission held the next day, all three sectors agreed to discuss the Labour Code reforms at a meeting of the Tripartite Commission to be held on 8 May.

14. The record of the meeting of 8 May 2003 shows that on the previous day, the President of the Republic had submitted a Labour Code reform package to Congress.

15. The workers’ and employers’ sectors considered that a severe blow had been dealt to the Tripartite Commission, and that to submit a package of legislative reforms to Congress 24 hours before the meeting of the Tripartite Commission was clearly contrary to the spirit and letter of Convention No. 144 and the Tripartite Commission’s own rules. The national authorities had shown scant regard for social dialogue.

16. The Government’s position was that at the Subcommission’s meeting of 23 April, there had been no quorum at a time when the three sectors needed to demonstrate their resolve to reach agreement. The draft legislation needed to reach Congress before it went into recess so that the matter could be dealt with in the second half of 2003.

17. It is the Committee’s understanding that the circumstances described in the letter of 26 May 2003 are similar to those analysed by the tripartite committee which examined the representation mentioned at the beginning of this observation. The Committee accordingly refers to its comments in paragraphs 2-7 above in order to emphasize that the Government and the social partners should apply procedures which ensure effective consultations - and which may include a precise timetable for the consultations. The efficiency of procedures is necessarily enhanced when each party states clearly its objectives for every aspect of the consultations.

18. The Committee is convinced that, in view of present circumstances in the country (nationwide elections had just taken place as the Committee met in late 2003), there are many opportunities to deepen tripartite consultations still further and to heighten social dialogue in Guatemala. As the Governing Body recalled, the Office has the technical capacity to help strengthen social dialogue and support the activities that governments and employers’ and workers’ organizations undertake for the consultations required by the Convention.

19. In view of the importance of tripartite consultations on international labour standards, the Committee trusts that the Government will provide new information on progress made in holding effective consultations on the subjects covered by the Convention, including information on the activities of the Tripartite Commission.

20. The Committee hopes that the national authorities and the social partners will be able to benefit from the Office’s technical assistance and trusts that the Government’s report will also contain comments on the matters raised in this observation.

21. At its next session, the Committee intends also to examine observations sent by a workers’ organization on the application of the Convention, which were forwarded to the Government in October 2003.

[The Government is asked to reply in detail to the present comments in 2004.]