Informe provisional - Informe núm. 27, 1958

1. 188. At its 133rd Session (Geneva, November 1956) the Governing Body approved the recommendations submitted by the Committee on Freedom of Association in an interim report on Case No. 144 (the complaint submitted on 2 May 1956 by the Confederation of Workers of Latin America). These recommendations were as follows
2. 258. In all these circumstances, the Committee:
   • (a) recommends the Governing Body to decide that the allegations regarding violations of human rights and Guatemalan labour legislation and the imprisonment and persecution of trade union leaders do not call for further examination ;
   • (b) recommends the Governing Body, in accordance with the conclusions stated in paragraphs 239 and 24:
   • (i) to call the attention of the Government to the fact that the existing Labour Code imposes restrictions on agricultural trade unions which are incompatible with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Guatemala, and to the necessity for ensuring that the future regulations provided for in the 1956 Constitution will abolish these restrictions, and to request the Government to keep the Governing Body informed as to the contents of such regulations when they are promulgated;
   • (ii) to draw the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations ;
   • (c) recommends the Governing Body, in accordance with the conclusions stated in paragraphs 243 and 244:
   • (i) to call the Government's attention to the fact that the existing ban on the formation of trade unions by civil servants and government employees and workers is contrary to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Guatemala, 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, and to keep the Governing Body informed as to the contents of such regulations when they are promulgated ;
   • (ii) to draw the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations ;
   • (d) recommends the Governing Body, in accordance with the conclusion stated in paragraph 252, to call the attention of the Government to the Committee's recommendation in Case No. 109-which was endorsed by the Governing Body when it approved the Committee's 17th Report-to take all necessary measures to enable free and independent central workers' and peasants' organisations, as well as their affiliated unions and federations, to re-establish themselves in accordance with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Guatemala;
   • (e) recommends the Governing Body to take note of the present provisional report in so far as it refers to allegations regarding the confiscation of the assets of the Educational Workers' Union, on the understanding that the Committee will make a further report as soon as it receives the information requested in paragraph 257.
3. 189. The information requested in paragraph 257 related to the legal grounds for the confiscation of the property belonging to the Educational Workers' Union, the use made of these funds and the means of defence available to the members of the dissolved union, and whether or not the Government intended to restore this property to the parties concerned when, as recommended by the Committee, the dissolved organisation was allowed to re-form.
4. 190. The Director-General wrote to the Guatemalan Government on 3 December 1956 asking for the information requested by the Committee. At its 16th and 17th Sessions (Geneva, February and May 1957) the Committee noted that the Guatemalan Government had not replied to the request for information made to it. At the second of these two sessions the Committee decided to make a further request to the Government for this information as a matter of urgency, and the Director-General notified this decision to the Government on 6 June 1957. The Guatemalan Government presented its observations on the subject on 24 August 1957.

A. A. The complainants' allegations

1. 191. This analysis is confined to those points of the complaint which are still outstanding and on which the Committee requested information. The Confederation of Workers of Latin America alleges that agricultural workers are forbidden to form unions and that the unionisation of state employees is also prohibited. Furthermore, hundreds of workers, particularly schoolmasters and road and construction workers, are stated to have been dismissed without being given an opportunity of defending their own interests. The Educational Workers' Union is alleged to have been dissolved arbitrarily and its assets (totalling 40,000 quetzales), made up of its members' contributions, have been confiscated.
   • ANALYSIS OF THE REPLIES
   • Communications of 18 June and 24 September 1956
2. 192. These communications are analysed solely in relation to the points still at issue. The Government states that under article 116 (9) of the Constitution freedom of association for both workers and employers is recognised as a fundamental principle. The law, however, may regulate this right having regard to the nature of the association concerned and the differences between the conditions of workers and employers in the towns and in the countryside. With regard to public employees a new set of regulations is now being drafted ; in the meantime, the Government Decree of 29 February 1956 (No. 584) concerning state employees is still in force. This decree provisionally regulated the position of these workers. Dealing with the confiscation of the assets of the Educational Workers' Union, the Government states that it was forced to dissolve the union owing to its infiltration by Communists. The union's assets had become state property as provided in the union's own by-laws.
   • Communication of 24 August 1957
3. 193. In this communication, which was in reply to repeated requests for additional information from the Committee, the Guatemalan Government stated that the question of agricultural trade unions and the right of association of state employees was being reviewed as a preliminary to implementing the provisions of the Constitution and that meanwhile the Labour Code remained in force. With regard to the confiscation of the assets of the Educational Workers' Union, the Government stated that these assets had been sequestrated while the position of the union was being investigated. A board of trustees had been set up to look after these assets. The Government attached to its reply a copy of the dissolved union's by-laws.

B. B. The Committee's conclusions

1. 194. 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 ; these instruments entered into force on 13 February 1953.
   • Allegations concerning the Right of Agricultural Workers to Form Trade Unions
2. 195. In its interim report on this case the Committee made a detailed examination of the position of agricultural trade unions under the 1947 Labour Code (sections 235-238). In reply to the Committee's request for information the Government now states that, although the legal position has not changed, the matter is being reviewed in order to bring the legislation into line with the Constitution.
3. 196. The Committee in its earlier report commented that the agricultural trade unions provided for under the Labour Code were organised for specific purposes (co-operation, the elimination of illiteracy, etc.) and that unless they had over 50 members and a proportion of literate members of not less than 60 per cent they did not possess the powers normally granted to trade union organisations. For example, they could not conclude collective contracts or collective agreements dealing with conditions of work, which under the Code remain the prerogative of urban trade unions. The Committee pointed out that Convention No. 87, ratified by Guatemala, states emphatically that " workers ... without distinction whatsoever " have the right to join organisations of their own choosing. The Committee concluded that the regulations in force in Guatemala involved a restriction of this right which was contrary to the instrument ratified by the Government.
4. 197. Following the Committee's interim report the Committee of Experts on the Application of Conventions and Recommendations also had an opportunity (April 1957) of expressing its opinion on this question. In its report the Committee of Experts states as follows : " The legislation in force contains provisions which are not compatible with the standard laid down in the Convention. This is the case, for example, with respect to the two following texts, which draw distinctions between workers, whereas, under Article 2 of the Convention, workers shall enjoy the rights and guarantees provided for without distinction whatsoever. (2) ... the provisions of sections 235 to 238 of the Labour Code considerably restrict the rights of agricultural workers by providing, among other things, that such workers may conclude collective agreements only if their union fulfils certain particularly stringent conditions (the union must exist within an estate employing at least 50 members, of whom 60 per cent at least must be able to read and write and must first of all have organised a cooperative society or established an institution for assistance and social welfare)." Lastly, the Committee of Experts asked the Government to keep it informed of the steps it was taking to rescind or amend these provisions.
5. 198. This being so, and bearing in mind that the legal position of Guatemalan agricultural trade unions has undergone no change since that date, and having regard to the conclusions of the Committee of Experts on the Application of Conventions and Recommendations referred to above, which coincide with the conclusions of the Committee in its own preliminary examination of this case, the Committee recommends the Governing Body to call the attention of the Guatemalan Government to the need to take steps to amend those provisions of the Labour Code that are incompatible with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which was ratified by Guatemala, so that agricultural workers can be enabled to exercise their trade union rights without any discrimination whatsoever.
   • Allegations regarding the Right of State Employees to Form Trade Unions
6. 199. In its interim report on this case the Committee examined the position of workers in the public service who were covered by the Government Decree of 29 February 1956 (No. 584). In reply to the Committee's request for information the Government now states that there has been no change in the legal position although a new set of public service regulations is now being drafted.
7. 200. The Committee in its report referred to earlier noted that section 9 (2) of the Decree of 29 February 1956 prohibited the formation of trade unions by public employees and workers in state services. The Committee considered that this ban was clearly contrary to the provisions of Convention No. 8^t, which had been ratified by Guatemala.
8. 201. For its part the Committee of Experts on the Application of Conventions and Recommendations considered, when it examined this question in April 1957, that this provision of the Decree of 29 February 1956 was incompatible with the terms of the Convention ratified by Guatemala, in view of the fact that workers are entitled to the rights and safeguards provided for in the Convention without any distinction whatsoever. A number of members of the Committee on the Application of Conventions and Recommendations at the 40th Session of the International Labour Conference (June 1957) expressed the view that some of the sections of the decree in question were " in flagrant contradiction to the provisions of the Convention ". The Guatemalan Government representative replied that " the Government had had to face a particularly delicate situation which led it to forbid public officials to form trade unions, but that nevertheless the right of association of such officials would be recognised within a short time ". The Committee " expressed the hope that the necessary amendments would be made to the legislation " s
9. 202. Accordingly, in view of the legal position of state employees and workers, which has undergone no change, i.e. they are still forbidden to form organisations of their own choosing, and having regard to the fact that both the Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Conventions and Recommendations of the International Labour Conference have concluded that this prohibition is contrary to Convention No. 87, which has been ratified by Guatemala, and have recommended that the relevant national legislation should be repealed, the Committee recommends the Governing Body to call the attention of the Guatemalan Government to the need to take steps to rescind the provisions forbidding the formation of trade unions by state employees, so as to bring Guatemalan legislation into line with the obligations that were solemnly accepted when the Convention was ratified.
   • Allegations regarding the Confiscation of the Assets of the Educational Workers' Union
10. 203. The Committee also examined this allegation in its interim report. On that occasion the Committee noted that Decree No. 48 issued in 1954 dissolving the union ordered its assets to be sequestrated. The Government for its part stated in its first communication that " the assets of this union automatically became state property, since the union's by-laws stated that in the event of dissolution its assets should revert to the State ". In its second communication, however, replying to the Committee's request for information, the Government stated that the assets had not been confiscated but had been " placed on deposit while the position of the dissolved trade union is being investigated ". At the present time these assets are being looked after by a liquidation board.
11. 204. The by-laws of the Guatemalan Educational Workers' Union (a copy of which was supplied by the Government at the Committee's request) contain the following provisions dealing with dissolution:
    • Article 75. The Educational Workers' Union of Guatemala shall be dissolved when two-thirds of its members so resolve and decide ; in such case, the executive committee shall communicate the resolution to the Department of Labour, together with a copy of the minute in which the dissolution decision is embodied and which must be signed by all the members of the executive committee. At the same time, the Ministry of Economic Affairs and Labour must be requested to appoint a liquidation board consisting of a labour inspector and two reputable persons elected from among the workers.
    • Article 76. In case of the dissolution of the Educational Workers' Union of Guatemala its property shall pass to the federation to which it is affiliated or to the Confederation to which such federation is affiliated.
12. 205. It must be pointed out that this question of the assets belonging to the dissolved union has still not been settled three years after the Government ordered the dissolution. Even though the Government in its second communication withdrew its earlier statement that the union's assets had been appropriated by the State, it is clear from a reading of the union's by-laws that in the event of dissolution the organisation's assets were to be disposed of in a specified way, viz. they were to be transferred to the federation or to the Confederation to which the latter was affiliated. This principle embodied in the by-laws is in line with the criterion followed by the Committee in all cases where it has been called upon to examine questions relating to the protection of trade union funds. The Committee has considered on a number of occasions that when an organisation is dissolved its assets must temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation. In the present case, moreover, the by-laws of the dissolved union stipulate that the number of trustees must be composed of two workers and a labour inspector and must be appointed by the Ministry of Economic Affairs and Labour at the request of the union's executive board. The Committee does not possess sufficient evidence to judge whether or not the board of trustees was appointed in accordance with these provisions ; in any event in view of the compulsory administrative dissolution imposed on the Educational Workers' Union by Decree No. 48 issued in 1954 there can be no doubt that this board was not appointed at the request of the parties concerned.
13. 206. The question of the appropriation of the assets of the Educational Workers' Union-which has still not been settled three years after its dissolution is only one feature of that organisation's dissolution. In its 24th Report the Committee found that this dissolution had taken place in exactly the same circumstances as those examined in Case No. 109 (Guatemala); in this latter case the Committee recommended the Governing Body to draw the attention of the Government to 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 provisions of the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948...".
14. 207. Accordingly, the Committee, in view of the fact that during the three years since the Government dissolved the Educational Workers' Union the latter's assets have not been finally disposed of, recommends the Governing Body to call the attention of the Guatemalan Government to the need for the earliest possible action to restore the assets of the aforesaid organisation to the parties concerned in accordance with the union's by-laws.