Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the Government’s report. The Committee notes the comments made by the Trade Union and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply in this respect. The Committee also notes the discussions in the Conference Committee (June 2002) concerning the application of the Convention. The Committee notes the comments concerning the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU) (10 January and 18 September 2002) and by the Union of Guatemalan Workers (October 2002), and the comments of the National State Union Workers Federation of Guatemala (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA), forwarded by the Government with its report.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179) confirm the existence of a high number of murders, acts of violence and death threats against trade unionists. The Committee notes and welcomes the Government’s indication of the establishment of a special unit in the General Inspectorate, which has begun operations, to improve the effectiveness of penal investigations of acts of violence against trade unionists, a unit which is currently investigating 50 cases. The Committee emphasizes the gravity of the situation and the fact that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will make diligent efforts to ensure the effective observance of human rights and the fundamental freedoms essential to the exercise of trade union rights.

2. Requirement under the Constitution to be of Guatemalan origin to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that, in view of the constitutional hierarchy of the provisions preventing foreign nationals from exercising trade union office, the legislation cannot contradict this constitutional provision. The Government adds that it is natural that the leaders of a trade union in an enterprise should be workers in that enterprise and that the leaders of branch unions should be working in the respective occupation.

The Committee emphasizes that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. Nevertheless, the Committee has recognized a State may require foreign workers to have resided in the host country for a reasonable period before they are eligible to be elected to trade union office. The Committee points out that branch or industry unions may have an interest in some officers, having legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to amend the legislation and the Constitution to ensure that workers’ organizations can determine in full freedom the conditions for the election of their officers and can therefore elect the representatives of their own choosing.

3. Requirement that to call a strike the workers must constitute 50 per cent plus one of those working in the enterprise (without including in the total workers in positions of confidence or who represent the employer) (section 241 of the Labour Code). The Committee notes the Government’s undertaking to continue giving effect to the recommendations of the Committee of Experts and that this matter is being discussed in the Tripartite Commission on International Affairs. The Committee recalls that in its previous comments it pointed out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee requests the Government to take measures to amend the legislation in the sense set out above.

4. Imposition of a penalty of imprisonment of from one to five years for anyone engaged in acts intended to paralyse or disrupt the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code). The Committee had requested the Government to state whether, with the repeal of section 257 of the Labour Code (which provided for the arrest and trial of persons publicly attempting unlawful strikes), section 390(2) of the Penal Code had ceased to apply in the event of strikes. The Committee notes with interest the Government’s statement that section 390(2) of the Penal Code is no longer in force and is not therefore applicable in the event of strikes.

5. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions set out in Legislative Decree No. 35-96 have or have not implicitly been repealed. The Committee notes the commitment expressed by the Government to continue implementing the recommendations of the Committee of Experts and the fact that on 8 February 2002 a High-Level Labour Committee was established, composed of the Ministers of State and representatives of the Trade Union and People’s Action Unit (UASP), in which these matters will be examined, including the repeal of Legislative Decree No. 35-96. The Government’s report, although it provides no further information, indicates that the decrees criticized by the Committee have already been implicitly partially repealed. The Committee emphasizes the importance of trade union rights being set out with precision in the law and therefore requests the Government to take the necessary measures to abolish the restrictions referred to above, which are contained in Legislative Decree No. 71-86, as amended by Decree No. 35-96.

6. Claims by the trade union federations that in recent years there have been no cases of legal strikes. The Committee notes that, according to Government’s report, the trade union federations have not complied with the provisions of the Labour Code. The Government adds that, for example, a legal strike took place in the municipality of Jalapa this year and that in the public sector actions similar to strikes have been undertaken, for example in the health sector, in judicial bodies and the Department of the Attorney-General. The Committee requests the Government to provide statistics on both legal and illegal strikes over the past two years, with an explanation in the latter case of the reasons that they were declared illegal.

7. Comments made by trade union organizations. The Committee notes that the Government has not replied to the majority of the comments made by trade union organizations. It is raising these matters in a direct request.

Finally, the Committee notes that the Government has requested technical assistance from the ILO. The Committee reminds the Government that the Office is at its disposal.