Informe definitivo - Informe núm. 307, Junio 1997

1. 317. The complaint was submitted in a communication from the Latin American Central of Workers (CLAT) dated 11 July 1996. The Government sent its observations in a communication dated 8 April 1997.
2. 318. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 319. In its communication of 11 July 1996 the Latin American Central of Workers (CLAT) alleges that Decree No. 35-96 issued by the Congress of the Republic of Guatemala (reforms to the Unionization and Regulation of Strikes by State Workers Act) contains provisions contrary to the national Constitution and to ILO Conventions Nos. 87 and 98. The complainant annexes a copy of Decree No. 35-96 of May 1996, reproduced below:
2. Section 1 - Section 1 of Decree No. 71-86 issued by the Congress of the Republic is amended as follows:
3. Section 1 - Right to organize. State workers and their decentralized and autonomous organizations may exercise their rights to organize freely and to strike in accordance with the provisions of the current Act, with the exception of the armed forces and the police.
4. Section 2 - Section 4 of Decree No. 71-86 issued by the Congress of the Republic is amended as follows:
5. Section 4 - Proceedings. The proceedings to be observed for the exercise of the right to strike of state workers and their decentralized and autonomous organizations shall be those set forth in this Act and, in addition, those stipulated in the Labour Code as long as they are applicable and do not infringe the following provisions:
6. (a) Direct proceedings shall be obligatory for the conciliatory conclusion of collective and other agreements concerning working conditions, with due account being taken of the legal options contained in the General Budget of Income and Expenditure of the State when determining them and, where appropriate, in those of the decentralized and autonomous organizations concerned. This proceeding shall be considered exhausted if within a time-limit of 30 days following the submission of the request by the party concerned no agreement has been reached, unless the parties arrange to extend said time-limit.
7. (b) In the case of failure to prove that direct proceedings have been exhausted, the respective dispute will not be examined, the judge having of his own motion to adopt the necessary measures to attain the proof.
8. (c) Once it has been proven that the above requirement has been fulfilled, the judge will immediately rule on the basis of the respective request and statement of petitions and the dispute will be considered filed, for the sole purpose of neither party taking reprisals against the other nor stopping the other exercising its rights.
9. Acts penalizing labour infringements or acts implying the exercise of rights contained in the Act do not constitute reprisals. Therefore, workers may terminate their working relationship without judicial authorization when there are grounds for indirect dismissal attributable to the State or in the event of resignation, retaining the right to claim any benefits to which they may be entitled by law through recourse to the applicable legal procedures.
10. Neither do the cancellation of nominations or contracts of employment constitute acts of reprisal by a state party or by its decentralized or autonomous organizations in the following cases:
11. (c.1) when the worker commits an act which is grounds for justified dismissal; and (c.2) in cases of agreed and actually held strikes, whatever name they may go by, whenever they imply work being abandoned or suspended collectively, or affect those public services designated as essential under this Act.
12. In these cases, the nominating authority of the State and those of its decentralized and autonomous organizations, are authorized to cancel nominations and contracts of employment, without incurring any liability and without prior judicial authorization.
13. (d) For the purposes of the provisions of the Constitution of the Republic of Guatemala, the following public services are designated as essential:
14. (d.1) hospitals, health centres and posts, as well as public hygiene and sanitation services;
15. (d.2) telephone, air navigation, telegraph and postal services;
16. (d.3) the justice authority and its auxiliary institutions;
17. (d.4) state and municipal urban and rural public transport of all kinds;
18. (d.5) water supply services for the population and services relating to the generation, transport and distribution of electric power and fuels in general; and
19. (d.6) public safety services.
20. (e) When the conciliation proceedings are exhausted without a settlement or an agreement having been reached, socio-economic collective disputes in which workers providing essential public services participate as a party shall be subject to obligatory arbitration as provided in Chapter 3, Title 12, of the Labour Code. In this case, the judge is not obliged to rule on the legality of the strike.
21. The right to strike of state workers and their decentralized and autonomous organizations is subject to the provisions of this Act and of the Labour Code, with the exception of the essential public services indicated in this section, which must in no case be affected.
22. (f) In addition to the labour sanctions to be imposed on anyone participating in the types of strike listed in clause (c) of this section, he will be subject to any civil or criminal liability he may have incurred.
23. (g) Strikes resulting from inter-union sympathy or sympathy with motions proposed by ad hoc committees or in associations with interests unrelated to socio-economic claims are categorically prohibited.
24. Section 3 - This Decree will come into force on the day following its publication in the Diario Oficial.
25. B. The Government's reply
26. 320. In its communication dated 8 April 1997 the Government states that on 27 May 1996, the Diario Oficial published Decree No. 35-96 issued by the Congress of the Republic of Guatemala, which amends Decree No. 71-86, the Unionization and Regulation of Strikes of State Workers Act. Guatemala's trade union organizations publicly condemned the action taken by the legislative body, considering that these reforms limit the right to organize freely and bargain collectively. They, therefore, proceeded on 6 June 1996 to lodge an action asserting the unconstitutionality of Decree No. 35-96 issued by the Congress of the Republic with the Court of Constitutionality. On 13 January 1997 that Court dismissed the claim of unconstitutionality, awarding the costs to the party bringing the case and fining the auxiliary lawyers, the parties being informed of the decision on 4 February 1997.

C. The Committee's conclusions

1. 321. The Committee observes that in this case the complainant alleges that Decree No. 35-96 contains provisions that are contrary to the national Constitution and to ILO Conventions Nos. 87 and 98. The Government has replied that the Court of Constitutionality handed down a sentence dismissing the claim of unconstitutionality lodged by the trade union organizations. The Committee recalls that it is not its role to state whether or not national legal standards comply with the national Constitution; it is, however, its role to examine the prevailing national standards in the light of the principles of freedom of association and those included in related ratified Conventions.
2. 322. In this connection, the Committee observes that Decree No. 35-96 excludes the armed forces and the police from the right to organize and the right to strike (section 1), that it imposes the use of direct proceedings (conciliation) for concluding collective and other agreements and that collective disputes can only be brought before the judicial authorities after a period of 30 days (section 2(a), (b) and (c)), that it prohibits strike action in certain services deemed to be essential (section 2(c) and (d)) and subjects them to obligatory arbitration, and lastly, that it prohibits sympathy strikes.
3. 323. In the Committee's view, the exclusion of the armed forces and the police from the rights to organize and to strike is not contrary to the principles of freedom of association, as Article 9, paragraph 1, of Convention No. 87 makes the following provision: "The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations."
4. 324. In respect of the legal obligation for conciliation in the framework of collective bargaining in the public sector, even up to 30 days, the Committee considered that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 500). The Committee therefore considers that these provisions do not infringe the principles of freedom of association.
5. 325. However, the Committee considers that some of the essential services for which the right to strike is prohibited are not essential in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see Digest, op. cit., para. 526), i.e. the postal service, transport and the generation, transport and distribution of fuels (see Digest, op. cit., para. 545). Likewise, as regards the prohibition of sympathy strikes, the Committee has considered that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful (see Digest, op. cit., para. 486) and that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association (see Digest, op. cit., para. 489).
6. 326. In these circumstances, the Committee requests the Government to take measures to amend the legislation so that (1) strikes are only prohibited in essential services in the strict sense of the term, and (2) it does not provide for a general prohibition of sympathy strikes and that the principles cited in the preceding paragraph are respected.
7. 327. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.