Cas individuel (CAS) - Discussion : 2009, Publication : 98ème session CIT (2009)

A Government representative recalled that his Government had accepted the visit of a high-level mission of the ILO and thanked the Employer and the Worker Vice-Chairpersons for their participation in this mission. As could be observed by the members of the high-level mission, progress had been made in a number of cases that had been dealt with for many years such as violations of freedom of association and the right to organize. In this regard, his Government was committed to continue its efforts to obtain more positive results in those cases that had been denounced by the ILO supervisory mechanism.

During the mandate of the new Government, there had been no cases of persecution of unions and his Government was trying to resolve those cases that had occurred in previous years. Consequently, the Government could not be blamed for failing to comply with the provisions of Convention No. 87.

During the 97th session of the Conference, the Government had been accused, among others, of not having demonstrated the political will to resolve cases such as the assassination of the trade unionist Pedro Zamora of the Trade Union of Workers of Puerto Quetzal, and of not encouraging collective bargaining. The high-level mission was able to verify significant achievements in various areas: one person had already been indicted for the assassination of Pedro Zamora, collective bargaining was a state policy of the present Government, etc. In addition, social dialogue was a constant motivation of the present Government and there existed forums for permanent dialogue such as the Conflict Resolution Table for State Employees.

The speaker said that it was important to highlight that through this constant dialogue, important reforms of the Labour Code were examined with the support of the ILO with a view to amending some of the sections that referred, among others, to the certification of trade unions, the prescriptions regarding the constitutive instrument, the functioning and the composition of their executive bodies and the conditions for declaring a strike legal. With respect to the establishment and registration of trade unions in the export processing zones (maquilas), he indicated that it was important to highlight that the present Government did not penalize nor stigmatize any trade union action, or any trade union, independently of the lawful action concerned. As long as they complied with the requirements provided for in national legislation and international Conventions ratified by Guatemala, trade union action was considered a priority to obtain legal recognition and to be operational.

He reaffirmed that the Government did not have any policy aimed at limiting the exercise of freedom of association nor the legal establishment of trade unions. In conclusion, he expressed his thanks for having been given the opportunity to explain that certain criminal facts had been elucidated, and to inform the Committee of his Government's firm intention to advance freedom of association and social dialogue as suitable tools in the search for consensus. His Government was mindful of the fact that only through those mechanisms it was possible to achieve full development of the people and to generate more opportunities for decent work.

The Employer members expressed appreciation for the hospitality and transparency shown to the ILO high-level bipartite visit to Guatemala in February 2009. The case of Guatemala had been examined by the Committee on 11 previous occasions, and significant efforts had been made by the Government and the ILO, which had provided resources and technical assistance. Previous discussion of the case had resulted in the high-level mission to the country in 2008 and the bipartite visit in 2009, undertaken in the context of the straightforward observations made by the Committee of Experts, which could be divided into two main categories: the issue of impunity with respect to acts against both unionists and other members of society and legal issues such as restrictions on establishing and registering trade unions, and on organizations of activities by workers, legislation relating to the establishment of public sector unions, slowness of justice, etc. The situation with regard to impunity had evidently become more severe since the high-level mission in February 2009. The Conference Committee had repeatedly emphasized that genuine freedom of association and trade union rights were incompatible with a climate of fear, violence and murder. The Employer members therefore expressed concern in that regard.

They recalled that the high-level visit in February 2009 had suggested that the problems were partly due to the lack of sufficient resources available to the Government to take all the necessary steps to implement Convention No. 87 in law and in practice, given that the country's total tax revenue was only 11 per cent of its gross domestic product. Meetings with the Tripartite National Committee during the high-level visit had revealed that the Committee was functioning and dealt with a range of serious issues, although its mandate could be extended. Nevertheless, despite all the efforts made, much progress remained to be done for the implementation of Convention No. 87, and the situation was not encouraging. A strategy on how to proceed was needed, as punitive measures against the Government were not appropriate. The Employer members concluded that concerted actions by the various parties, including the Conference Committee, were needed in working towards the establishment of effective freedom of association in Guatemala.

The Worker members considered that the core of the discussion was the follow-up of the Government on the declaration of the tripartite high-level mission which had visited Guatemala from 16 to 20 February 2009 with a view to assisting the country to find sustainable solutions to the problems indicated by the Conference in 2008: violence against trade unionists, including death threats and murders; urgency in adopting additional measures to end this violence; and the impunity for crimes committed against trade unionists and legislative provisions contravening Convention No. 87.

They recalled that the high-level mission had focused on three problems: impunity for crimes committed against trade unionists, effectiveness of the law in this context, and effective implementation of freedom of association. They highlighted the necessity to provide the Office of the Public Prosecutor with sufficient and duly trained personnel, and stressed the need to allocate additional resources for programmes for protection of trade unionists and witnesses. The high-level mission had made an uncompromising statement on the lack of independence of the judiciary. It had acknowledged the very low union affiliation rate and very limited number of collective agreements in force, the numerous restrictions affecting freedom of association in the industries in the export processing zones, and the extremely weak labour inspection in spite of the statements made by the Government in 2008. Observing that in Guatemala, people commonly had associated trade union activities with criminal activities, the mission had called on the Government to take concrete measures to stop trade unionism from being stigmatized.

They recalled that the Committee of Experts itself had underlined for many years the persistence of these acts of violence, the impunity around them and also the resistance in the labour legislation of provisions in contravention with Convention No. 87, namely: restrictions concerning the nomination of workers' representatives, restrictions concerning the exercise of trade union activities and the absence of freedom of association in the public sector. Considering that there had been a high-level mission in 2008, which had led to a tripartite agreement and then another one in 2009, that had given rise to a declaration, and that the question of the application of Conventions Nos 87 and 98 in Guatemala had been on the agenda of this Committee for more than 20 years, the Worker members requested that the conclusions would state that this case would appear in a special paragraph of the report of the Committee.

The Government member of the United States, referring to a public submission that had been received in 2008 from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and six Guatemalan unions under the Labour Chapter of the Dominican Republic-Central America-United States Free Trade Agreement, stated that her Government was reviewing many of the issues that had been examined by the Committee of Experts in its observation. She shared the Committee's deep concern at the acts of violence against trade union leaders and members, and urged the Government to undertake fully the steps recommended by the Committee of Experts in order to guarantee full respect for the human rights of trade unionists. The Government was particularly urged to provide additional resources to the Special Prosecutor's Office for Offences against Trade Unionists and Journalists.

The Government had acknowledged the serious challenges before it and had availed itself of ILO technical assistance on several occasions, including a number of high-level missions; the most recently had taken place in February 2009 by the Worker and Employer Vice-Chairpersons of this Committee. While the Government had established mechanisms for addressing the issue of violence and impunity and resolving numerous long-standing deficiencies in the labour legislation, much remained to be done. She encouraged the Government to redouble its efforts - focusing not only on specific cases, but also on systematic improvements - in close cooperation with the ILO and with full involvement of the social partners, so that concrete progress in law and in practice could be noted in the very near future.

The Government member of Spain said that she was not going to highlight, once again, the violence against trade unionists in Guatemala, as the reports gave evidence enough for the Government to adopt the necessary measures to resolve this problem.

She emphasized, however, the importance of freedom of association, as enshrined in Convention No. 98, for the existence of democracy and recalled that the three levels of its components, namely, the right to establish trade unions, the right to draw up their constitutions, and the right to organize their activities, including the right to strike, were closely inter-related, insofar as if one of them failed, the other two could not function. This was what was happening with the right to form trade unions.

The Committee of Experts' report implied that administrative requirements and demands in Guatemala resulted in unjustifiable and serious restrictions to the right to form trade unions, a situation that was all the more serious considering that the obstacles concerned were being applied in a context of violence against trade union representatives.

She stated that her country was confident that, with ILO technical assistance and international cooperation, all the administrative obstacles impeding the formation of trade unions and the right to organize could be removed, since, as the high-level mission of the ILO had indicated, trade union organizations played a fundamental role in the social and economic development of societies and were closely linked to the consolidation of democracy. In conclusion, she said that employers, workers and the Government should work together to emulate the principle of freedom of association in their country.

The Government member of Belgium expressed grave concern about the situation in Guatemala as reflected in the report of the Committee of Experts, especially with respect to the acts of violence against trade unionists. His Government hoped that the positive elements which had emerged following the high-level mission would materialize through the effective application of Conventions Nos 87 and 98, which were key instruments for the improvement of social policy and, thus, for social justice. The implementation of all social policies involved the integration of social dialogue in the functioning of the State, and led to broader social protection, effective labour administration and the realization of rule of law. The speaker concluded stating that his Government hoped that all measures recommended by the Office would be implemented, and fully supported technical cooperation activities for the benefit of Guatemala.

A Worker member of Guatemala drew attention to the fact that, for nine consecutive years, the Government had received comments from the Committee of Experts concerning problems with the application of Convention No. 87. Those problems involved the most flagrant violations of the fundamental rights of the country's workers.

Among the facts that the Committee of Experts had most often highlighted were acts of anti-union violence, including murder and kidnapping, and the lack of freedom of association in export processing zones and enterprises, where it was impossible to form a trade union. Workers in such enterprises were not allowed to be pregnant, to urinate more than twice a day, get up to drink water during the working day, submit complaints or miss a single day's work due to illness, as those were all legitimate causes of dismissal for Guatemalan women working in textile companies.

Over the last 20 years, various Governments had indicated their political will to solve the problem of freedom of association, and the current Government continued to make such promises. The Government had also made other commitments and statements to the same effect. Furthermore, the President of the Republic, Álvaro Colom Caballeros, at the International Trade Union Conference against impunity organized by the International Trade Union Confederation in Guatemala in January 2008, had promised to end problems connected with freedom of association.

The speaker expressed concern about the fact that the Government was trying to take advantage of the good faith of the international community by saying that progress was being made thanks to the creation of eight labour courts and the strengthening of the Special Office for Offences against Journalists and Trade Unionists, which did not function in practice. He said that the situation with regard to freedom of association in the country was becoming more and more serious and cited, as an example, one case of kidnapping and another in which threats had been made.

The speaker recalled that the Employer and the Worker Vice-Chairpersons, who had been part of the high-level mission to Guatemala in 2009, had been informed regarding the murder of 26 trade unionists and other acts of violence against trade unionists that had taken place in Guatemala. The visit had enabled them to see that the issues raised continued to be very serious, particularly the entrenched climate of impunity and violence against trade union leaders and members, without any legal proceedings or convictions in recent years.

The Worker member of Germany highlighted the situation of extreme anti-union violence and impunity in Guatemala. Despite the new Government's promise to address the situation, no improvements had been noticed. Since January 2008, 26 trade unionists had been murdered, with an additional 24 cases of threats, 62 instances of criminalization of trade union activities, three kidnappings and five assassination attempts. In this regard, the speaker noted with relief that her Guatemalan colleague Mr Efrén Sandoval was in good health and participating in the Conference as an observer representing the ITUC. In view of the above, she did not find it surprising that the percentage of trade union organization in Guatemala was at only 0.5 per cent of the working population.

The problem of anti-union violence was closely linked to the issue of impunity; 98 per cent of the offences in Guatemala remained unpunished. The perpetrators of anti-union acts of violence did not face any consequences, which was mainly due to the inefficiency of the judicial system. It could only be deplored that justice in Guatemala only existed for those who could afford it.

The speaker further reported that, in January 2009, the labour movement of farmers and indigenous peoples that constituted the main target of anti-union attacks, had submitted a set of concrete demands to the relevant ministry and the Office of the Public Prosecutor. Amongst other things, the trade unionists had asked for a detailed report on the state of investigation of recent assassinations and a report on the factors impeding prosecution, and for a meeting with the relevant ministry to discuss a policy of prevention, identification and punishment of perpetrators. The fact that the Government had not even considered necessary to respond to this initiative, illustrated that the problem was not only due to lack of capacity but also to the lack of political will of the Government.

In view of the systematic violation of human rights, workers' and trade unions' rights, she stated that the DGB supported the Guatemalan trade unions in their cry for help directed to the European Union, the ILO and European workers' organizations, and also endorsed the extension of the mandate of the International Commission against Impunity (CICIG). Lastly, the DGB would suggest the insertion of a chapter on labour and social issues into the EU Association Agreement, which should include respect for the fundamental ILO Conventions as well as a mechanism for monitoring and assessing compliance.

Another Worker member of Guatemala said that, for many years, representatives of governments and production sectors throughout the world had listened to the Government talking about progress made with respect to freedom of association in Guatemala. However, during those same years, there had been a fall in the rate of unionization that had left trade unions representing only 0.5 per cent of the economically active population. In Guatemala, trade union activity faced more obstacles every day. The high-level mission that had visited the country in February 2009, had grouped these problems into three broad areas: impunity; lack of conditions for the exercise of freedom of association; and the ineffectiveness of the judicial system. Impunity was not rooted in the existence or non-existence of courts, but in the failure to apply national legislation and Convention No. 87, which Guatemala had ratified in 1952.

With regard to violence against trade unionists, he stated that, since 2007, 26 members of the Indigenous and Rural Workers Trade Union Movement of Guatemala had been murdered, but the culprits had not yet been arrested. Disguised labour relations, blacklisting, anti-union dismissals, corruption and the ineffectiveness of both labour inspection and the courts were just some of the problems facing trade unionists. Some years ago, the ILO had requested the removal of mechanisms for supervising trade unions but the present Government had introduced more supervisory mechanisms. This did not only restrict the freedom to join trade unions, but also restricted the areas in which trade unions acted independently, replacing unions with government bodies such as the Tripartite Committee on International Affairs, which had become the Government's main tool for signing agreements on apparent solutions to existing problems which were intended solely to confuse the international community.

He said that, in these circumstances, the trade unions could but request a special paragraph on Guatemala that:

(a) set out the concerns of the Committee regarding the lack of freedom of association in Guatemala;

(b) expressed regret that the technical support provided in recent years had not resulted in any objective improvement of conditions for the exercise of freedom of association;

(c) requested the Government to take measures to ensure freedom of association, and the courts of justice to adopt, in their application of Convention No. 87 and national legislation, the interpretation criteria issued by the Committee on Freedom of Association in its Digest of decisions and principles of the Freedom of Association Committee;

(d) requested the Government to take the appropriate measures to guarantee the physical security and life of leaders of organizations belonging to the Indigenous and Rural Workers Trade Union Movement of Guatemala and its work teams.

The Worker member of the United States indicated that while the reports concerning this case had always been consistent, fair and unambiguous, the events in Guatemala failed to live up to the provisions of Convention No. 87 and shocked the conscience. The egregious and wilful nature of impunity could not be reconciled with neither Convention No. 87 nor the existing Guatemalan law. The general climate of violence, whether focusing specifically on trade unionists or the general population, had a chilling effect on those who attempted to exercise their rights, such as the right to associate freely or the right to speak out publicly.

The Committee of Experts had, on more than one occasion, expressed the hope that in the near future "significant progress" would be made in particular with respect to the tripartite agreement concluded during the high-level visit. Tangible evidence should be provided that impunity was met with accountability and the rule of law and that workers were allowed to organize without fear or intimidation.

The speaker denounced existing employer tactics aimed at slowing down freedom of association of workers, such as retaliation, termination, harassment and the establishment of company unions designed to undermine existing legally formed unions; but also, bankruptcies, ownership substitution and re-registration of companies by employers seeking to circumvent their legal obligation to recognize newly formed or established unions. Blacklisting of union organizers, threats of factory closures, refusal to permit labour inspectors to enter facilities to investigate worker complaints, and refusal to reinstate wrongfully dismissed union organizers were also commonplace.

Government institutions had tolerated these practices, many of which could and should be addressed under existing law. Even worse, delays in processing legal complaints had rendered workers defenceless and employers immune from meaningful accountability. Most workers, including those organized in trade unions, did not have collective agreements concerning their wages and working conditions nor did they have individual contracts as required by law.

In instances where workers advocated their legal rights, employers subverted labour laws by taking advantage of back-logs, delays and the overall incompetence in the delivery of justice, the lack of prosecution and a lack of a functional independent judiciary. Particularly troublesome was the realization that before, during and after the high-level visit in 2009, trade unionists had been threatened, attacked and murdered. This was illustrated by the killing of an active member of the Union of Banana Workers of Izabel while at his workplace, which occurred a week after the Union had met with the Government to complain about threats against a union member.

Turning to the issue of enforcement, he pointed out that despite several recent efforts by the Government to improve enforcement of labour laws, the ability to follow through was virtually non-existent. Labour leaders had reported receiving death threats and were being targets of other acts of intimidation, but there had been only one conviction for a crime against trade unionists. The authorities responsible for protecting citizens against violations of the law were understaffed and underfunded and pressure was put on labour inspectors to rule in the employer's favour. In the view of the organized labour in Guatemala, the restructuring of the Special Prosecutors' Unit for Crimes against Journalists and Unionists reflected a reduced commitment to prosecuting crimes against unionists.

He concluded by stating that compliance with Convention No. 87 did not call for governments or employers to commit acts of largess; rather freedom of association and the right to organize was the core enabling right, essential to the meaningful attainment of all other rights at work. The Report of the Committee of Experts had reminded us that "(r)espect for freedom of association at the workplace (did go) hand in hand with respect for the basic civil liberties and human rights inherent to human dignity".

The Government member of Uruguay, speaking on behalf of the Group of Latin America and the Caribbean (GRULAC), thanked the Government, the Employer and the Worker members for their statements. He declared that the Government of Guatemala had illustrated, in its intervention, that it had made efforts to improve national conditions to ensure the full application of Convention No. 87, by means of actions that were already being implemented for some time; the most recent being the acceptance of a high-level mission in February 2009. In this regard, the speaker asked the Conference Committee and the Office to continue to provide the technical assistance requested by the Government and to ensure that such assistance was timely and appropriate to achieving the purpose. GRULAC considered that a country such as Guatemala that had relentlessly collaborated with the ILO for several years, should be conceded the time necessary to ensure that its initiatives and the technical assistance received from the Office could produce an impact.

Furthermore, the speaker noted once again that a number of countries in the region had been called upon to appear before the Conference Committee, albeit countries cooperating with the supervisory bodies and making efforts, at national level, to ensure the full application of workers' rights. GRULAC expressed concern about what seemed to be a constant that continued to carry on endlessly, to the detriment of the examination by the Conference Committee of serious situations in other parts of the world. Finally, GRULAC acknowledged certain improvements in the working methods of the Conference Committee but a lot remained to be done, in particular as regards transparency and objectivity of the selection criteria for work in this Committee.

The Worker member of Colombia stated that, while the Government representatives had made promises concerning freedom of association, the application of Convention No. 87 in this Central American country remained an illusion, insofar as the low degree of unionization illustrated that the Government and employers impeded on trade union activities.

The speaker found it discouraging that, despite the efforts made by the ILO including the high-level mission, the situation had not changed and that, in practical terms, the development of Guatemalan trade unionism continued being bogged down both by the reservations of the workers to affiliate due to the fear of losing their lives or jobs, and by the existing obstacles to establish new organizations or strengthen existing ones.

The speaker hoped that the required prerequisites to establish a workers' organization, the need for registration, and the accumulation of restrictions of the right to collective bargaining would not go unnoticed by the international community. In this regard, he felt that there was no justification that in Guatemala, a country that had ratified Convention No. 87 in 1952, more than 50 years ago, workers could not exercise their right to unionize, and the degree of trade union organization did not exceed the absurd percentage of one per cent of the active population. In addition, economic interests including the current system of tariff preferences also had a bearing on the situation in Guatemala.

The speaker invited the Government and the Guatemalan employers, in the interest of democracy and the establishment of a social rule of law, to provide the necessary guarantees to enable the workers to exercise their rights to unionization and collective bargaining. Lastly, he proposed that the conclusions of the present case should appear in a special paragraph so that the Government and employers did not forget the pledges made to the ILO.

The Government representative of Guatemala found it only natural for the Worker members to deplore the low number of trade unions existing in Guatemala. Nonetheless, the Government wished to point out that the scarcity of workers' organizations was not due to any Government policy intending to impede on the establishment of trade unions. He expressed the hope of his Government that progress would be accomplished with respect to the Guatemalan legislative reform in the previously mentioned areas, in particular, regarding the provisions of the Labour Code on freedom of association. He mentioned that he was accompanied by two members of the Executive Council of the Congress of the Republic to demonstrate the Government's willingness to bring about reforms.

The speaker stressed that the ILO was cognisant of the Government's attempts to put social dialogue into practice. However, on some occasions, the Government had faced the refusal of certain sectors, and dialogue necessitated more than one party. Moreover, the Government did not determine the composition of the Tripartite Commission on its own, given that it was constituted of three parts.

He asked the Conference Committee to formulate and adopt clear and well-defined strategies, since the full application of Convention No. 87 could not wait for another 50 years. The speaker also requested technical and financial assistance from the ILO and, and also asked for the commitment of the members of the Conference Committee to supporting vigorously Central American countries, in particular Guatemala, in order to achieve conformity with the Convention. The Government was ready to spare no effort to attain that objective. As regards the issue of maquilas, the Government emphasized that a joint commission had been set up to try to find solutions. At the beginning of 2008, 20,000 workers of one of the most significant maquilas of the country had lost their jobs due to delocalization. Now the maquila had returned to Guatemala, and every effort was made to reemploy the maximum number of workers.

The Government did not close the door upon any person respecting the Guatemalan legislation and international standards. The speaker further expressed regret that, for so many years, his country had appeared on the list of countries not fully applying Convention No. 87. Lastly, he concluded that it would be appropriate to strengthen the Tripartite Commission, since the vital legislative reforms were being elaborated in the framework of that tripartite body.

The Employer members thanked the Government for the information provided. The present case dealt with numerous issues, of which the most fundamental related to impunity. They recalled that the Conference Committee had usually reserved the special paragraph for cases where the Government had failed to take any measures or was not cooperating. In the Employer members' view, this was not the case of Guatemala. The high-level mission had concluded that the Government had allocated human and budgetary resources to prosecution and judicial administration to address impunity of anti-union violence. It was evident that more resources were needed and that legislation was required to address the issues of implementation identified by the Committee of Experts. However, during the long history of the present case, the Government had taken constructive steps and had adopted a positive attitude. The number of issues had been gradually reduced.

The Employer members recalled the general consensus that had emerged during the high-level mission. Accordingly, priority attention should be given to the following three main issues: (i) impunity in relation to violence against trade unionists; (ii) effectiveness of the judicial system; and (iii) implementation of freedom of association. The representativeness of the Tripartite Commission was also a matter of concern. The high-level mission had concluded that the above mentioned areas needed to be addressed on a priority basis and that concrete progress in this regard should be noted before the next session of the Conference. To this end, the mission had proposed that follow-up at regular intervals be carried out by the ILO to provide technical assistance and to assess the progress achieved. The Employer members felt that the latter recommendation had not yet been put into practice and emphasized the need to do so before adopting a special paragraph.

The Worker members highlighted that this case had been under the attention of the ILO supervisory bodies for more than 20 years. Therefore, the Government had had ample time to take the necessary measures to adapt its legislation and practice to the principles contained in Convention No. 87. However, the Government had done nothing and the situation continued to deteriorate. They acknowledged that the Government made practically no use of the technical assistance which the Office had already provided. The Worker members hoped that the four components of the declaration issued by the high-level mission in 2009 - increasing the capacity of the courts against violence against trade unionists, improving the effectiveness and independence of the judiciary, reinforcing the means of labour inspection, concrete action against the stigmatization of trade unionists - would be monitored by means of a report which the Government would submit to the Committee of Experts at its session of November 2009, and which the Conference Committee would take up in 2010. Finally, the Worker members requested that the conclusions would state that this case would be included in a special paragraph of the report of the Committee.