Informe provisional - Informe núm. 24, 1956

A. A. The complainants' allegations

1. 223. In its communication dated 2 May 1956 the Confederation of Workers of Latin America (C.T.A.L) alleges that various provisions of the 1947 Labour Code have been ignored to the detriment of the workers and in violation of the Universal Declaration of Human Rights and the resolutions of the I.L.O. The workers have suffered wage cuts and may now be dismissed without compensation, and in addition they have lost the right to a day off a week with pay, to holidays with pay and to compensation for overtime.
2. 224. An arbitrary order has been issued forbidding the unionisation of agricultural workers and placing these workers at the mercy of the landowners. It is alleged that murders of agricultural workers by employers or their agents have only been punished by fines. The workers employed by the Government are also unable to form trade unions ; this makes it difficult for them to insist on their lawful rights and claims in the event of dismissal, which has been a frequent occurrence since the present Government came into power. Hundreds of government workers have been dismissed without being able to protect their rights ; this is particularly true of school teachers and road and construction workers. The Educational Workers' Union has not merely been dissolved arbitrarily but its assets, totalling 40,000 quetzales made up of its members' contributions, have been confiscated. The General Confederation of Labour (C.G.T.G) and the Confederation of Peasants of Guatemala (C.N.C.G) have been dissolved in violation of the law and contrary to the wishes of their members. Similar action has been taken against Confederations of trade unions and peasants throughout the country.
3. 225. The free representative trade union movement is constantly persecuted and a great number of obstacles are placed in the way of its reorganisation and its ability to take cases to the labour courts. Trade union leaders have been harassed and persecuted under pretext of the need to combat communism ; hundreds of trade union leaders and officials have been illegally imprisoned ; while others have been forced to seek refuge abroad and have been denied the opportunity of returning to Guatemala.
   • ANALYSIS OF THE REPLY
4. 226. In its communication dated 18 June 1956 the Guatemalan Government states that Title IV of the Constitution of 6 February 1956 is in fact based on the Universal Declaration of Human Rights. With regard to the alleged violations of International Labour Conventions it is stated that only 14 of the latter have been ratified by Guatemala. Section 116 of the Constitution recognises as " fundamental principles of labour legislation " the right to one day off a week with pay, to an annual holiday with pay which may not be commuted for compensation, to extra pay for overtime and the obligation of an employer to compensate any worker who is dismissed without good reasons ; these Constitutional provisions by implication rebut the allegations made by the C.T.A.L.
5. 227. Under section 116 (9) of the Constitution, the right of workers and employers to associate freely for the sole purpose of safeguarding their economic interests and to better their social conditions is recognised as a fundamental principle of labour legislation ; and " the law shall make provision for the exercise of this right, having regard to the conditions prevailing in the various economic sectors and differences in the situation of rural and urban workers and employers ". This by implication rebuts the allegation regarding the ban on trade unionism among agricultural workers. On the subject of the alleged failure to punish those guilty of murdering peasants the Government states that the Criminal Code lays down the penalties for this offence and that the penalties would be enforced whatever the circumstances and irrespective of the personal standing of the individual concerned.
6. 228. With regard to workers employed by the State the Government explains in its communication dated 24 September 1956 that, as required by the Constitution, a set of public service regulations are now being drafted. The State Employees Decree (No. 584) dated 29 February 1956, a copy of which was appended to the Government's reply, is also applicable as a provisional measure. The Government reports that since it came into force none of the unions of government workers has had its incorporated status withdrawn.
7. 229. In reply to the allegation about the dissolution of the Educational Workers' Union and the confiscation of its assets, the Government states that it was forced to take this measure because of Communist infiltration within the union, but adds that the dissolution cannot be held to be arbitrary since it was provided for in the Guatemalan labour legislation which came into force in 1947. In the Government's opinion this legislation does not violate the spirit of Conventions Nos. 87 and 98 which Guatemala has ratified. The assets of the dissolved union have become State property as in fact its own by-laws provided. For similar reasons the Government has felt compelled to dissolve the General Federation of Labour and the Confederation of Peasants.
8. 230. In order to rebut the statements made by the complaining organisation to the effect that trade union leaders are persecuted and trade union reorganisation is obstructed, the Government quotes sections 43, 44, 47, 54 and 76 of the Constitution which state that no person may be detained without warrant ; that every person has the right to do whatever is not prohibited by law ; that no person may be exiled or prevented from entering the country ; that " the inhabitants of the Republic have the right to associate freely for the various purposes of human existence in order to promote, exercise and protect their individual political, economic, religious, social, cultural, occupational and other interests of any kind whatsoever ". Any laws or regulations which impair or curtail these Constitutional safeguards are ipso jure null and void. Finally, the Government adds that the functions and duties of State bodies are regulated by the Constitution : " Officials are not the possessors but the trustees of authority, they are responsible for their official conduct and are subject to, and at no time above, the law" (section 2 (3)).

B. B. The Committee's conclusions

1. 231. The Guatemalan Government ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) on 13 February 1952 ; the Conventions came into force for Guatemala on 13 February 1953.
   • Allegations relating to Infringements of Human Rights and Guatemalan Labour Legislation
2. 232. The complaining organisation merely states in general terms that the Universal Declaration of Human Rights has been infringed and that a number of rights granted by Guatemalan law-the weekly rest day with pay, holidays with pay, dismissal compensation, overtime with pay, etc.-have been ignored. The Government in reply quotes various subsections of section 116 of the Constitution of 6 February 1956 which specifically recognises as " fundamental principles of labour legislation ", which may not be curtailed by laws or regulations, those workers' right that according to the complaining organisation have been ignored. Title IV of the Constitution (" Human Rights ") is, according to the Government, based on the Universal Declaration of Human Rights.
3. 233. This being so, the Committee notes that the complaining organisation does not refer to any specific violation of human rights and, moreover, that the allegations that various rights granted under Guatemalan labour legislation have been abolished refer to such matters as the weekly day of rest, holidays with pay, dismissals without compensation, overtime, etc., which have no direct relation with freedom of association and therefore do not fall under that heading. In Case No. 94 (Cuba) in which the Committee was asked to give a ruling on allegations that various human rights had been violated, it concluded that because these allegations did not refer to freedom of association there was no ground for pursuing its inquiry ; in Case No. 34 (Ceylon) the Committee decided that it was not called upon to examine general legal issues which had no relation to freedom of association. In the present case, considering that the workers' rights mentioned in the complaint are specifically recognised by the Guatemalan Constitution as " fundamental principles of labour legislation " the Committee considers that, even bearing in mind the importance it has always attached to the enforcement of statutory provisions recognising fundamental rights, it is unnecessary, in view of the tenor of the complaint, to inquire into the practical effectiveness of these Constitutional safeguards and accordingly that this aspect of the complaint does not call for further examination.
   • Allegations relating to the Right of Agricultural Workers to Form Trade Unions
4. 234. The complaining organisation asserts that agricultural workers have been forbidden to form trade unions and that they are at the mercy of the landowners with the result that they have suffered gross ill-treatment while those responsible have not been properly punished. The Government for its part quotes section 116 (9) of the Constitution which guarantees in general terms the right to form trade unions while leaving it to the appropriate Act to draw a distinction between rural and urban workers and employers.
5. 235. Leaving aside the general allegation which is not backed by any proof and has nothing to do with the exercise of trade union rights, since it deals with alleged criminal offences committed by employers against agricultural workers, the Committee notes that the Constitution, while sanctioning agricultural trade unionism, states that the detailed regulations will be introduced later. At the present time the 1947 Labour Code, which has remained in force by virtue of the Decree No. 216 of 31 January 1955, contains special clauses dealing with " agricultural associations " (sections 235-238).
6. 236. These sections read as follows:
7. 235. The object of every agricultural association shall be to protect and ameliorate the living conditions of agricultural workers and their families and other dependants and at the same time to contribute to the development and progress of agricultural and stock-raising undertakings throughout the country. For the purpose of attaining this last-mentioned essential purpose, the fundamental activities of an agricultural association shall be as follows:
   • (a) to organise co-operative societies among its members and to create and stimulate the co-operative spirit in its members by all means in its power ... ;
   • (b) to establish, administer or encourage institutions for assistance and social welfare in the mutual interest of its members ... ;
   • (c) by all means in its power to provide the necessary instruction for those of its members and their families who cannot read and write.
8. 236. An association of agricultural workers shall not be formed with a membership of less than 50.
9. 237. The Ministry of Labour and Social Welfare, acting through the General Labour Inspectorate, shall facilitate the work of agricultural associations and shall give them advice constantly in all matters relating to their activities and working.
   • The said Ministry shall ensure that agricultural associations do not engage in any activities other than those specified in section 235 and in subparagraph (b) of section 214, so long as the associations in question fail to furnish evidence that they are engaged in one of the two forms of activity specified in subparagraphs (a) and (b) of the said section 235 and that they have amongst their members not less than 60 per cent who are able to read and write. For this last-mentioned purpose, agricultural associations shall be bound to indicate, in their Constitution and in the annual list of members, opposite the name of each member, whether he can read and write ; the statements respecting this must be countersigned by a teacher in the service of the Ministry of Education who is employed in the locality where the association concerned is domiciled or has its offices.
10. 238. The provisions laid down in Chapter I of Part VI of this Code ["General Provisions and Urban Associations "] shall apply to associations of agricultural or stock-raising undertakings which have not less than 500 employees in their service.
11. 237. The Committee notes from the foregoing sections that under Guatemalan legislation agricultural associations are organisations with specific purposes (cooperation and the abolition of illiteracy) and that, except when they have more than 500 members and not less than 60 per cent of literate members, they do not possess the powers normally granted to trade unions, e.g. the right " to conclude collective contracts of employment and collective agreements respecting conditions of employment " which section 214 of the Code grants to urban associations. In this connection it should be pointed out that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) which has been ratified by Guatemala, emphatically states that " workers ... without distinction whatsoever " are entitled to form organisations of their own choosing, whereas section 237 of the Guatemalan Labour Code imposes a restriction incompatible with this principle in that it requires 60 per cent of the members to be literate. Article 1 of the Right of Association (Agriculture) Convention, 1921 (No. 11) :which has not been ratified by Guatemala-confirms this principle : " Each member of the International Labour Organisation which ratifies this Convention undertakes to secure to all those engaged in agriculture the same rights of association and combination as to industrial workers..".
12. 238. In the present case the existence of special regulations for " agricultural associations " implies prima facie the existence of restrictions on the right of workers " without distinction whatsoever " to establish organisations, and the right of all unions in accordance with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) to conduct their affairs freely. When a complaint refers to the application of a Convention which has been ratified the Committee is called upon, even if the allegations are couched in general terms, to inquire whether there has been an infringement of the obligation assumed by States to comply scrupulously with the Conventions they have ratified.
13. 239. Owing, however, to the fact that the restrictions were imposed by an Act passed in 1947 before Convention No. 87 was ratified, while the complaining organisation refers to a more recent violation of the freedom of association of agricultural workers without supplying any evidence to show that the right of agricultural workers to form unions has recently been the subject of any further restrictive regulations, and since, moreover, according to section 116 of the 1956 Constitution the question of the regulation of agricultural associations will be specifically dealt with in new regulations, the Committee, in view of the fact that the existing regulations impose restrictions on agricultural trade unions which are contrary to Convention No. 87 which has been ratified by Guatemala, considers it necessary to call the attention of the Government to the disparity between the provisions of the Convention and the national legislation and to the necessity of taking steps to bring such legislation into conformity with the Convention.
14. 240. As the Committee was informed that the first report sent by the Government of Guatemala on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in accordance with article 22 of the Constitution of the I.L.O, was recently received by the International Labour Office and that it will be examined by the Committee of Experts on the Application of Conventions and Recommendations at its next session (March 1957), the Committee considers it desirable that the above observations should be drawn to the attention of the Committee of Experts.
    • Allegations relating to the Right to Organise of Workers Employed by the Government
15. 241. The complainant alleges that workers in government service, such as school teachers and road construction workers, cannot form associations to protect themselves against the arbitrary dismissals ordered by the present Government. The latter, for its part, states that it is at present drafting a set of public service regulations and that in the meantime the Government Workers' Decree No. 584 of 29 February 1956 is applicable. The Government states that since this decree has been in force none of the unions of government workers have lost their incorporated status.
16. 242. Section 9 (2) of Decree No. 584-which deals with civil servants, public employees and government workers - states : " the formation of trade unions by the workers referred to in this decree shall be prohibited ". In this respect it should be noted that the right of all workers without distinction whatsoever to establish trade unions is specifically recognised by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Guatemala. Article 2 of this Convention stipulates that " workers ... without distinction whatsoever shall have the right to establish and ... to join organisations of their own choosing without previous authorisation ". This right is confirmed a contrario by the provision in Article 9 which, as the only exceptions, allows freedom of association to be restricted in the armed forces and the police.
17. 243. This being so, the Committee, in view of the specific ban on the formation of trade unions by government workers embodied in current Guatemalan regulations, considers it advisable, bearing in mind the principle laid down in Case No. 5 (India) regarding " the right of state and local government employees to constitute and register trade unions ", to point out the incompatibility of the ban contained in section 9 of Decree No. 584 with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Guatemala. Although Decree No. 584, according to the Government's own statement, is merely a provisional measure pending the introduction of a set of public service regulations and no existing trade union has been dissolved since it was promulgated, the Committee notes that the present ban, under that decree, on the formation of trade unions by civil servants and government employees and workers is contrary to the above-mentioned Convention ratified by Guatemala and calls the attention of the Government to this fact and to the necessity of taking steps to ensure that the final version of the public service regulations shall be in conformity with the Convention.
18. 244. For the same reasons as were indicated in paragraph 240 above, the Committee considers it desirable that these observations should be drawn to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
    • Allegations relating to the Imprisonment and Persecution of Trade Union Leaders
19. 245. The complainant alleges in general terms that the free trade union movement is harassed and persecuted and that, under pretext of combating communism, trade union leaders are persecuted, illegally imprisoned, and driven into exile. The Government denies this allegation and quotes a number of Constitutional provisions stipulating that no person may be arrested without a warrant, exiled or refused entry into the country, etc.
20. 246. The Committee notes that the complaint does not refer to any specific cases of imprisonment or persecution of any individual trade union leader and draws attention to the fact that it has submitted its conclusions concerning certain specific cases of this character to the Governing Body in paragraphs 174 to 186 of this report dealing with Case No. 131. In these circumstances, while once more emphasising the importance it attaches to ensuring that every trade unionist on arrest is afforded all the safeguards of due process of law, the Committee considers that the allegations made in the present case are too vague to permit of an examination of this aspect of the case on its merits.
    • Allegations relating to the Dissolution of the Educational Workers' Union and Other Bodies
21. 247. The C.T.A.L alleges that the Educational Workers' Union has been arbitrarily dissolved, together with the General Confederation of Labour and the Confederation of Peasants of Guatemala. The Government states that it was forced to take these measures because of Communist infiltration into these organisations, and it does not consider that it has violated the spirit of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which Guatemala has ratified.
22. 248. The Committee has already had occasion in Case No. 1091 to make a special examination of the dissolution of the General Confederation of Labour and the Confederation of Peasants. This measure was ordered by Decree No. 48 of 10 August 1954 issued by the Government Junta. The text of this decree, which is analysed in Case No. 109, can be summarised as follows : section 1 states that 15 trade union and political organisations are dissolved together with " any other political parties or organisations or associations that have supported Arevalo or Arbenz or have served the Communist cause ". The General Confederation of Labour is referred to in subsection (a), the Confederation of Peasants of Guatemala in subsection (b) and the Educational Workers' Union in sub section (e). Under section 2 legal personality is withdrawn from all the dissolved organisations, while section 6 states that the decree is a security measure.
23. 249. In Case No. 109 the Committee found that, according to the Guatemalan Labour Code, the only bodies with power to dissolve trade unions are the labour courts on submission of proof that the unions have committed some illegal act (e.g. interference in political affairs or religious or racial disputes, activities detrimental to democracy, etc.) (section 226). Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (which has been ratified by Guatemala) states that workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority, while Article 6 stipulates that this provision also applies to federations and Confederations. When Decree No. 48 was promulgated by the Government Junta, the Committee observed that " Decree No. 48 pronouncing the dissolution of the General Confederation of Labour and the Confederation of Peasants of Guatemala was promulgated by the Government and considers that dissolution by the executive branch of the Government acting in the exercise of legislative functions with which it is endowed by virtue of its act of Constitution, like dissolution by virtue of administrative powers, does not ensure the right of defence which normal judicial procedure alone can guarantee and to which the Committee continues, in accordance with the views which it has expressed in other cases, to attach the greatest importance ". Nevertheless, in view of the political situation in Guatemala at the time, the Committee recommended the Governing Body to draw the attention of the Government " to the desirability of taking all necessary measures to ensure (i) that free and independent central workers' and peasants' organisations, as well as their affiliated unions and federations, may reconstitute themselves in accordance with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).... " This recommendation was endorsed by the Governing Body when it adopted the 17th Report of the Committee on Freedom of Association on 18 November 1955 ; the Guatemalan Government was informed of it by the Director-General of the I.L.O by a letter dated 1 December 1955.
24. 250. In the present case the Committee notes that the complaint of the C.T.A.L adduces no new evidence regarding the dissolution of the General Confederation of Labour and the Confederation of Peasants, apart from the fact, which is confirmed in the Government's reply, that the position, despite the recommendation made by the Committee in November 1955 in Case No. 109, had not changed by the date of the complaint (May 1956). The Committee notes that the Government also states in its reply that " this measure [dissolution] does not violate the spirit of Conventions Nos. 87 and 98 which have been ratified by Guatemala " ; on this point the Committee draws the attention of the Government once more to the view it expressed in Case No. 109 and which it now reiterates.
25. 251. With regard to the dissolution of the Educational Workers' Union - which was not included in the complaint dealt with in Case No. 109 and was not, therefore, examined by the Committee - the position both in fact and in law is exactly the same as in the case of the organisations referred to in the previous paragraph, since this Union was also dissolved administratively by Decree No. 48, upon which the Committee has already stated its views.
26. 252. In these circumstances the Committee, noting that the complaint under review makes no new allegation concerning those dissolutions not already examined in Case No. 109, reiterates its earlier recommendation and draws the attention of the Guatemalan Government once more to the aforementioned recommendation regarding the desirability of taking all necessary measures to ensure that free and independent central workers' and peasants' organisations, as well as their affiliated unions and federations, may reconstitute themselves in accordance with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
    • Allegations relating to the Confiscation of the Assets of the Educational Workers' Union
27. 253. The complainant alleges that the Guatemalan Government confiscated the assets of the Educational Workers' Union when it was dissolved ; it is stated that these assets totalled 40,000 quetzales, made up of members' contributions. The Government, for its part, states that " the assets of this Union automatically became State property, since the Union's own by-laws stated that in the event of dissolution its assets should revert to the State ".
28. 254. Section 3 of Decree No. 48 of 1954, which dissolved the Union in question, states : " An inventory of the property and funds of the bodies referred to in subsections (k), (l), (m), (n), (ñ) and (o) (viz. : University Democratic Front, Guatemalan Labour Party, Guatemalan revolutionary Party, Revolutionary Action Party and National Reconstruction Party) of section 1 of the present decree shall be compiled by the Ministry of the Interior; in the case of the bodies referred to in other subsections it shall be compiled by the Ministry of Economic Affairs and Labour. Both Ministries shall carry out the dissolution of these bodies and shall sequestrate their property and funds. "
29. 255. It should be noted in the first place that section 3 of the Dissolution Decree by no means orders the straightforward confiscation of the property of the dissolved organisations, but merely instructs the Ministry of Economic Affairs and Labour and the Ministry of the Interior to compile an inventory and to sequestrate these assets. Moreover, the Committee notes that according to the Government the confiscation was ordered in accordance with the by-laws of the dissolved organisation, although it has not supplied the Committee with a copy of these by-laws. In the circumstances, the Committee is bound to feel some doubts about the interpretation placed upon this clause which is quite unusual in the by-laws of any trade union. Even assuming that such a provision existed whereby the assets reverted to the State in the event of dissolution, the Committee doubts whether such a clause could be regarded as applicable in the event of a forced dissolution which took place under a procedure at variance with the laws and regulations in force at the time when the by-laws were adopted ; these laws and regulations, as has been seen, made no provision for forced dissolution at the order of the administrative authorities ; and it is particularly difficult to regard such a clause as applicable in a situation in which the authorities may derive financial benefit from a dissolution imposed in circumstances that the dissolved organisation was unable to foresee.
30. 256. The Committee in its First Report stated that one of the questions calling for further study was the protection of trade union funds against misuse and it has been called upon to deal with a number of cases in which such funds had been blocked or confiscated. The principle followed by the Committee in examining these cases was the universally accepted criterion that, when an organisation is dissolved, its assets should be provisionally sequestrated and eventually distributed among its former members or handed over to the organisation that succeeds it.
31. 257. In these circumstances, the Committee recommends that the Guatemalan Government should be requested to furnish further information regarding the confiscation (the legal basis for this action, the use made of the funds and the safeguards possessed by the members of the union) and any intentions it may have of restoring these assets to the individuals concerned when the dissolved organisation is allowed to re-form in accordance with the Committee's recommendation in paragraph 252.