Cas individuel (CAS) - Discussion : 2017, Publication : 106ème session CIT (2017)

The Government provided the following written information.

Investigations of murders and convictions handed down to date

The Government of Guatemala reiterates its concern at the actions perpetrated on the victims. It is continuing the relevant investigations with the aim of fully elucidating the facts and circumstances surrounding the murders of the trade union members and leaders, identifying the perpetrators and securing convictions in accordance with the law. In March 2017, at the 329th Session of the Governing Body, the Government of Guatemala reported on 15 court rulings. Since then, the Special Investigation Unit for Crimes against Trade Unionists has reported the following progress: three court convictions; one acquittal; four persons undergoing criminal prosecution proceedings; two arrest warrants put into effect; and one termination of criminal prosecution proceedings. Moreover, the Special Investigation Unit has made investigations to establish and individually identify the suspected perpetrators of the crimes, including the following procedures: statements by indirect and immediate witnesses, statements by victims, collection of evidence, audio visual evidence, property searches, inspections, examination of property records and expert reports. It should be noted that no anti-union motives were established in any of the 18 cases; nevertheless, we are committed to giving the necessary protection to any trade unionists that require it. Note should also be taken of the undertaking given by the Ministry of Labour and Social Welfare, which meets periodically with the authorities of the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG), to follow up the collaboration between these institutions.

Risk assessments for all trade union leaders and members under threat; assignment of corresponding protection measures

The Ministry of the Interior has reported that between January and May 2017 it received 20 requests for security measures, in relation to which the Risk Assessment Department of the Personal Protection and Safety Division of the National Civil Police undertook the corresponding investigations; as a result, the 20 requested protection measures were granted.

Requests for security measures made by the Public Prosecutor’s Office pursuant to the “Protocol for the implementation of immediate and preventive security measures for trade union leaders and members and labour rights activists”, issued in January 2017

Since January 2017, the Public Prosecutor’s Office, through the Special Investigation Unit for Crimes against Trade Unionists, has requested the Ministry of the Interior to issue 14 preventive security measures for trade union leaders and members, and has asked the National Civil Police to issue eight perimeter security measures.

Report on the free 1543 emergency helpline for receiving complaints of violence or threats against human rights advocates

Since January 2017, the Ministry of the Interior has reported that none of the calls received on the 1543 emergency helpline were connected with trade union leaders or members. Accordingly, with a view to informing the trade union sector of the free helpline and to promote appropriate use thereof, a campaign has been launched to publicize through social media the 1543 emergency helpline for the protection of trade unionists. Moreover, the Ministry of the Interior has established dialogue forums (the “Unit for the analysis of attacks against human rights advocates” and the “Standing trade union round table on comprehensive protection”), which meet periodically and discuss the cases reported by trade unions and ensure the corresponding follow-up by the competent bodies. These dialogue forums seek to address in a timely fashion violations against freedom of association or the physical integrity of trade union leaders and members. In addition, these dialogue forums have been used to raise awareness among the trade unions of the “Protocol for the implementation of immediate and preventive security measures for trade union leaders and members and labour rights activists”.

Strengthening of institutions

The Government of Guatemala recognizes the importance of the commitments entered into through the ratification of the Convention. Accordingly, the Chief Public Prosecutor/Head of the Public Prosecutor’s Office issued instructions that the corresponding action should be taken to strengthen the Special Investigation Unit for Crimes against Trade Unionists, which currently comprises 19 staff members and operates within the structure of the Human Rights Prosecutor’s Office, with the addition of three prosecution offices.

Creation of special tribunals to deal with crimes involving freedom of association

Since the promulgation of Decree No. 21-2009 of the Congress of the Republic (Law on Criminal Jurisdiction in High-Risk Proceedings), the State of Guatemala has had the following judicial structure: four Courts for High-Risk Proceedings, one Court of Appeal for High-Risk Proceedings in the capital, and two Sentencing Tribunals, where proceedings may be heard in cases of offences committed against the lives of trade unionists. In this regard, the Public Prosecutor’s Office can submit a request at any time for the Criminal Chamber of the Supreme Court of Justice to consider the circumstances and allocate such proceedings to be heard by the Courts for High-Risk Proceedings. It should be pointed out that the convictions recently obtained by the Public Prosecutor’s Office in the cases of Mr William Leonel Retana Carias and Mr Manuel de Jesús Ortiz Jiménez were handed down by the Sentencing Tribunals for High-Risk Proceedings, following the recommendation of the ILO Committee of Experts.

Legislative reforms

On 16 March 2017, at an ordinary plenary sitting of members of the Congress of the Republic, Decree No. 7-2017 (Bill 5198) was passed, reforming Decree No. 1441 (Labour Code); it came into force on 6 June 2017. The fact that the text passed by Congress was the result of an agreement between trade union and employers’ organizations in the country is considered a historic event. With the entry into force of this legislation, inspection procedures have been established in law, including the potential for sanctions in the event of failure to apply labour standards, thereby guaranteeing that the State of Guatemala will act to foster a culture of compliance with labour rights and obligations. With respect to Bill No. 5199, the Ministry of Labour appreciates the fact that the ILO Committee of Experts on the Application of Conventions and Recommendations has observed with interest the Bill submitted to the Congress of the Republic on 27 October 2016, as it addresses the majority of the Committee’s previous comments. On 9 May 2017, a session of the Labour Committee of the Congress of the Republic was held, in which the employer, worker and government sectors took part, following agreement by the bipartite constituents to submit their agreements and conclusions to the Committee. The government sector endorsed its support for bipartite dialogue and is fully disposed to participate in discussions as and when requested by the constituents, taking into account the fact that the Congress of the Republic, through the chairman of the Labour Committee, has set a specific date for receiving agreements, after eight months have elapsed, during which time Congress has granted various extensions in response to requests from workers and employers for additional time. The Ministry of Labour and Social Welfare is confident that this Bill will be passed in the near future and that it includes all the additional elements referred to by the Committee of Experts in its report to the 105th Session of the International Labour Conference.

Registration of trade unions

The Ministry of Labour and Social Welfare, through the Directorate-General for Labour, receives requests for trade union registration and recognition of legal personality. In this respect, a total of 84 trade union organizations were registered in 2016; in 2017, a total of 26 trade unions have been registered so far. With regard to reforming the procedures for trade union registration, the Ministry of Labour and Social Welfare has created a dialogue forum, within which an agenda has been agreed, including items proposed by trade union organizations.

Handling and settlement of disputes relating to freedom of association and collective bargaining by the Dispute Settlement Committee

At a meeting of the Tripartite Committee on International Labour Affairs held on 18 May 2017, the Ministry of Labour and Social Welfare submitted the terms of reference for consultations on the evolving functions of the Dispute Settlement Committee, which were drafted with support from the Office of the Representative of the ILO Director-General. In this regard, the sectors agreed to hold the consultations in question and to send in their observations. In addition, the members of the Dispute Settlement Committee are planning to hold a workshop on “self-evaluation by the Committee” in the next few days.

Awareness-raising campaign on freedom of association and collective bargaining

Efforts to raise awareness have been stepped up as part of “Freedom of association and collective bargaining for a better country”, especially with media bosses, columnists, commentators, journalists, and public relations managers from the three branches of State. The campaign continues to be promoted through official websites and the social media feeds of the state bodies, as well as through interviews on government media and the distribution of posters and flyers to visitors and trade union leaders at the various institutions. Furthermore, there are plans for training on freedom of association and collective bargaining to be provided with the textile and maquila (export-processing) sector, with support from the Office of the Representative of the ILO Director-General.

In addition, before the Committee, a Government representative emphasized her country’s commitment to compliance with the fundamental labour principles and standards, including through the Memorandum of Understanding and the Roadmap, with a view to resolving the issues relating to the Convention contained in the complaint made under article 26 of the ILO Constitution. The President of the Republic was directly involved in this matter. She added that she was being accompanied by representatives from the three branches of the State, which had reaffirmed their firm commitment to compliance with the Roadmap thereby demonstrating support at the highest levels of the State. She reiterated her concern at the loss of human lives as a result of the violence in the country, including certain trade unionists, and indicated that deep-rooted structural changes were being implemented in the country. In this respect, she indicated that the Ministry of Labour and Social Welfare held regular meetings with the authorities of the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG). The Special Investigation Unit for Crimes against Trade Unionists has been strengthened and recently increased to 19 staff members and three prosecution offices. Furthermore, she indicated that, in 2016, the Ministry of Labour and Social Welfare had registered a total of 84 trade union organizations, and that, in 2017, 26 trade unions had been registered so far. With ILO support, it was planned to reinforce the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. Efforts to raise awareness had been stepped up as part of the freedom of association and collective bargaining campaign, and there were plans for training to be provided with the textile and maquila (export-processing) sector, with support from the Office of the Representative of the ILO Director-General. The recent entry into force of the amendments to the Labour Code had strengthened the general labour inspectorate, granting it powers to impose penalties, and to ensure greater transparency in its action, an Ethics and Transparency Unit had been established, to provide the population with a high quality and efficient service. She reiterated the Government’s commitment to making firm progress which, when recognized, would mean that the case of Guatemala could be closed by the Governing Body when it meets in November 2017. In conclusion, she expressed the concern of her Government at the simultaneous use of different supervisory mechanisms to examine the same allegations against a country, concerning which a complaint was before the Governing Body. She considered that this was a duplication of supervisory mechanisms, which weakened the operation and credibility of the ILO’s supervisory bodies.

A magistrate of the Constitutional Court noted that the Constitutional Court operated independently and permanently, and that its primary task was the defence of the human rights guaranteed and protected by the Constitution and international treaties, and which consequently formed part of the “Constitutional Block”. The Court had observed international standards in the field of labour law when handing down judgments and safeguarding the rights of workers. In 2016, out of 147 decisions issued in amparo (legal protection of constitutional rights) proceedings concerning labour rights, 109 decisions had been in favour of the workers. With regard to the right to organize, she emphasized that many decisions had been handed down guaranteeing that during the period of the establishment of a union employers could not, without judicial authorization, dismiss protected workers.

A magistrate of the Supreme Court of Justice referred to the existence of Courts, Sentencing and the Court of Appeal for High-Risk Proceedings where proceedings could be heard in cases of offences committed against the lives of trade unionists, thereby giving effect to the recommendation of the Committee of Experts to create special tribunals. He indicated that those tribunals had handed down three convictions in cases related to trade unionists. Moreover, in the period from March 2017 to date, three convictions, one acquittal, four persons involved in penal proceedings, two executed arrest warrants and one extinction of criminal proceedings had been registered. He expressed the commitment of the Court concerning its responsibilities related to the Roadmap and recalled that the Office of the Public Prosecutor could at any time issue a request for the Criminal Chamber of the Supreme Court of Justice to assess the circumstances and refer prosecutions to higher-risk courts.

The Deputy Minister of the Interior reaffirmed the commitment of his Ministry to continue making progress in giving effect to its obligations under the Roadmap, as demonstrated by the approval, publication and entry into force of the protocol for the implementation of immediate and preventive security measures for the protection of trade union members which was being implemented with the participation of the trade union leaders. Furthermore, a campaign had been launched to publicize the emergency helpline (1543) for the protection of trade unionists, and, with a view to strengthening the protection measures, the budget of the National Civil Police had been increased and more space had been allocated for coordination and communication with the workers, so as to ensure compliance with the requirements of the Roadmap and expedite the elucidation of acts of violence.

The Deputy President of the Labour Commission of the Congress of the Republic reiterated the commitment of legislators to promotion and compliance with labour rights, and emphasized that the commitment of the Labour Commission of the Congress of the Republic, as set out in the Roadmap, had been demonstrated by the adoption of Decree No. 7-2017, which granted the power to impose sanctions to the general labour inspectorate. With respect to Bill No. 5199 concerning freedom of association and the right to strike, a specific date had been set for receiving the agreements of the workers and employers with a view to their submission of a proposal agreed by consensus, after eight months of consultations and three requested extensions. In conclusion, he said that social dialogue would continue to be promoted in the various sectors with a view to developing and reforming new labour legislation to bring it into conformity with international Conventions with a view to the integrated development of the country.

The Worker members considered that the Government had consistently failed to take action in response to the serious observations and recommendations of the ILO supervisory mechanisms. The current situation was not substantially different from that of 2012, which had motivated the complaint submitted under article 26 of the ILO Constitution concerning non-observance of the Convention. Since then, 28 additional trade unionists had been murdered and the environment of almost complete impunity had continued unabated. The question of violence and impunity against trade unionists in Guatemala had been examined many times by the Committee and the inaction by the Government called for continued examination, independent of the process currently taking place in the Governing Body. The Committee of Experts had noted “with deep concern the persistent allegations of acts of anti-union violence” and had expressed “its particular concern at the lack of progress in the investigations of murders in which evidence had already been found of a possible anti-union motive”. Of the 70 cases of murder brought before the Committee on Freedom of Association, only 11 had led to convictions to date. Even so, the Office of the Public Prosecutor and the courts had insisted that the motives for the violent murders subject to these eleven convictions had not been based on the victims’ trade union activity. Current and past administrations in Guatemala had never seemed to find in any case a relationship between union activities and the motives of the assassinations. The Office of the United Nations High Commissioner for Human Rights and the CICIG had also noted with deep concern the lack of progress in the investigation of such cases. Furthermore, in terms of the investigation of those cases, the Government was still falling short of performing actions as basic as collecting testimony from relatives, witnesses or ballistic analysis. The Government had also failed to protect trade unionists who were being harassed and threatened for undertaking their union activities. The Worker members regretted that the protocol for the implementation of immediate and preventive security measures for trade union members, which had recently been put in place by the Government, would be nothing more than a commitment of good intentions if there was no action on the ground. There was a need to see urgent action to implement the protocol and more funds had to be allocated for this purpose, as had also been stressed by the Committee of Experts. Recent legislation had finally been passed restoring the capacity of the labour inspectorate to impose sanctions in case of the violation of trade union rights. This positive outcome had only been reached due to bipartite agreement between the most representative employers’ and workers’ organizations, which proved that social dialogue was possible in Guatemala and was the only way forward to address the immense challenges facing the country. Yet, the Government still failed to understand the importance of including social partners in decision making. Recently, a Bill had been introduced in Congress seeking to bring the legislation into conformity with the Convention without proper consultation with the trade unions. The unions could therefore not accept the Bill, especially as it contradicted a number of clear recommendations by the Committee of Experts. In particular, the Bill sought to amend section 390(2) of the Penal Code in a way that would retain the risk of imposing penal sanctions on workers carrying out a peaceful strike. The Government had had an important chance to show its commitment to the Roadmap when the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining was set up. Unfortunately, that mechanism had become a wasted opportunity due to the lack of political will. Very low resources had been allocated to that initiative. Moreover, the Committee of Experts had noted that there was no complementarity between judicial mechanisms for the protection of freedom of association. The Office of the Public Prosecutor had also admitted that it had received no fewer than 1,950 complaints for failure to comply with court reinstatement orders for workers dismissed as retaliation for forming unions. Impunity was such that employers in the private and public sectors simply ignored court orders. The Government had not provided any details on the penalties imposed on the numerous employers who were infringing the law. The Government had also increased the obstacles for union registration or the renewal of the credentials of existing trade union leaders. The Government had even failed to launch an awareness-raising campaign on freedom of association, as agreed in the Roadmap. A mass media campaign would be particularly useful in the maquila sector, where there had been several documented cases of violations of freedom of association and the impossibility to form trade unions. The Government had even used appearances in the media to attack the right to freedom of association and collective agreements in the public sector. The Worker members would continue to monitor closely compliance of the Roadmap. The issues raised had been before the ILO supervisory system for over 20 years. It was their firm hope that the issues related to impunity, legislative changes and union registration would be resolved. Finally, they acknowledged the positive role played by the Special Representative of the ILO Director-General in Guatemala.

The Employer members recalled that this subject had been examined by the Committee on Freedom of Association in Case No. 2609 and by the Governing Body through its follow-up of a complaint made under article 26 of the ILO Constitution. They also recalled that the case related to: (i) trade union rights and civil liberties; (ii) legislative issues; (iii) the registration of trade unions; (iv) conflict resolution on freedom of association; (v) the awareness-raising campaign for freedom of association; and (vi) the maquila sector. They emphasized that the written information submitted by the Government contained detailed and updated elements on these subjects. Nearly all of the cases of anti-union violence reported were very old, and that under these conditions it was very difficult to carry out investigations. They emphasized that the institutions of State were nevertheless operational. The State was making its best efforts and results were being achieved. In particular, the fact that representatives of all the branches of the State were present in the Committee was a demonstration of their commitment. It was important to ensure the continued operation of the Tripartite Committee on International Labour Affairs and to continue undertaking awareness campaigns and information dissemination. They expressed interest in being provided with further details on the refusal by the workers of a proposal by the Government to reform the procedure for trade union registration. They also noted with great interest the indication by the Government concerning the requirements for the establishment of branch unions and the changes in relation to foreign nationality to stand for office on the executive bodies of trade unions. With reference to the comments of the Committee of Experts in relation to strikes, they reiterated that they did not consider that the right to strike was regulated by the Convention and that there was therefore no basis for its discussion by the Committee, that the Committee’s conclusions on the case should not therefore refer to the right to strike and that the Government was not required to follow the recommendations of the Committee of Experts on that specific subject. They emphasized that there was full freedom at the national level, with regard to strikes, to establish legislation that was adapted to the national circumstances and emphasized in that respect the progress that could be made at the initiative of the Congress, and particularly through the will of the tripartite partners. They referred to the comments of the Committee of Experts on the possible penal sanctions established in section 390(2) of the Penal Code, and raised the question of whether acts of sabotage, damage or destruction of private property, enterprises or institutions which affected their production and services could be considered peaceful. In view of the high number of complaints to the ILO supervisory bodies relating to freedom of association, they expressed interest in the further use of dispute mediation and resolution machinery, although in each case it was for the State itself to determine the manner in which such machinery should be designed and developed. They emphasized that the maquila sector was the principal source of exports and of formal and direct employment in the country, and that compliance in the sector with the legislation and fundamental workers’ rights was being promoted by the most representative organization of employers, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF). A code of practice based on fundamental labour Conventions, which certified over 300 enterprises and governed over 250,000 workers, and independent audit systems were being implemented, many of which were international. The Employer members added that the fact that textile enterprises were covered by an average of five audits a year for each of their clients, in order to be certified and to continue renewing commercial contracts, should lead the Committee to consider that this aspect of the case had been resolved definitively. In conclusion, they emphasized the commitment of employers to continue the awareness-raising campaign on freedom of association and to continue a strengthening of the various public and private institutions in the country.

The Worker member of Guatemala deplored the constant and serious violations of freedom of association that Guatemala had been witnessing for years, which not only profoundly affected labour relations, but also called into question the situation with regard to democracy and human rights in the country. The figures brooked no discussion: 84 trade unionists had been murdered in recent years, counting only the cases currently being dealt with by the Special Investigation Unit of the Office of the Public Prosecutor, and 251 complaints of serious attacks against trade union leaders and labour rights defenders had been made in 2015 and 2016. At present there were thousands of reinstatement orders in respect of workers who had been dismissed for having tried to organize into unions. According to court records, in the majority of cases such reinstatement orders were not complied with and, in complete violation and disregard of the law, in some cases workers were reinstated only to be dismissed again. There were many ministerial obstacles to registering new trade unions and new executive bodies, to complying with administrative procedures for trade unions and for the approval of the few collective agreements that were actually concluded. The President of the Republic issued an annual circular essentially prohibiting collective bargaining in the public sector by limiting wage adjustments on the pretext of spending restrictions and austerity. Many workers who had applied for the approval of collective agreements more than 15 months previously had still received no answer from the authorities of the Ministry of Labour and Social Welfare. Indeed, there had been many orders to remove clauses from collective agreements from which workers had benefited for many years. A fierce anti-union campaign was under way, driven by employers and the State, with the aim of having collective agreements declared harmful for the country and criminalizing the trade union leadership. In so doing, the campaign aimed to portray trade union organizations as responsible for the disorder, corruption and economic crisis affecting most people in Guatemala. As such, it was not surprising that the annual report of the International Trade Union Confederation (ITUC) named Guatemala as one of the ten worst countries in the world in terms of violations of the right to freedom of association. Workers faced the worst forms of violence, including intimidation, threats, persecution, kidnapping, physical violence and even murder, simply for trying to organize. Worse still, the situation was aggravated by the prevailing impunity of those responsible for such appalling acts, as was clear from the report submitted by the Office of the Public Prosecutor in March 2017 on the state of the investigations into the murders of 84 trade unionists. The document did no more than corroborate the lack of technical capacity and political will to investigate the murders of fellow trade unionists. The vast majority of cases had not seen any progress, and when new ones were reported, they generally resulted in acquittals or investigations being closed and the union link being ignored. It was a matter of deep regret that, four years after the Roadmap had been adopted which had had a one-year time frame for its completion, progress was scarce and insubstantial. There had been no significant change in the situation with respect to freedom of association and collective bargaining. Committees, working groups and similar forums had been formed but, despite the best efforts of trade unionists, they did not lead to substantive changes. The legislative amendments recommended by the Committee of Experts were still pending. The Government’s legislative proposal not only failed to follow the recommendations but also, in some respects, involved retrograde steps in relation to freedom of association. A reform of the Labour Code had been adopted with regard to the powers of labour inspectors to impose penalties on those who failed to comply with labour legislation, but at the last moment, members of Parliament had included a provision that prevented inspectors from entering a large proportion of the country’s workplaces. Lastly, having reiterated the union movement’s commitment to do everything in their power to ensure that the Roadmap was implemented and, in general, that the rights of workers and trade union organizations were upheld, he requested the Committee to urge the Government to take specific action to guarantee the rights enshrined in the Convention and emphasized the need to establish a Commission of Inquiry.

The Employer member of Guatemala welcomed the information supplied by the Government, and the fact that the Government delegation was composed of representatives of all the branches of the State and the highest level civil servants responsible for the subject. That was testimony to the commitment of the Government to the ILO and its supervisory mechanisms to resolve the complaints that had been made for years. That commitment also needed to be made by the social partners. Employers had been doing so for many years, participating in social dialogue forums with the aim of giving effect to the observations of the Committee of Experts. With regard to trade union rights and civil liberties, he noted the information supplied by the Government describing a series of measures to provide trade union leaders with protection and resolve cases of violence against them. The vast majority of those cases dated back many years, which made it much more difficult to obtain final court rulings. Nevertheless, results had been achieved which showed that there was no anti-union persecution in Guatemala. There had been isolated occurrences of that type in the recent past, which were part of the climate of serious violence in the country. He thought that there was a lack of balance in the comments of the Committee of Experts, which had noted “the lack of progress in the investigations of murders in which evidence [had] already been found of possible anti-union motive”. Moreover, with regard to the legislative issues, the Committee of Experts had been, for a number of years, asking the Government for decades to engage in tripartite dialogue on various legal provisions with a view to aligning them with the Convention. With the support of the Special Representative of the ILO Director-General in Guatemala, the workers and employers had discussed this set of reforms, which affected the Labour Code, the Penal Code and the Act governing the rights of state workers. Important agreements had been reached with regard to the Penal Code and it was hoped that more agreements would be concluded in the near future. Decree No. 7-2017, which had also resulted from social dialogue and the support of the Representative of the Director-General, had resolved the long-standing issue of the authority of labour inspectors to impose penalties. Even though the Congress of the Republic had not fully taken into account the content of the agreements reached through social dialogue, a commitment had again been made by employers and workers to insist that Congress adopt the reforms that had been left aside. The country had made unprecedented progress on those issues. With regard to the resolution of disputes relating to freedom of association and collective bargaining, he reiterated the firm commitment of the employers to participate in bipartite or tripartite dispute settlement forums, particularly the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. He was aware that the results so far had not been totally satisfactory and perhaps there had not been the greatest willingness on the part of all parties. It was necessary, in a tripartite manner, to evaluate the working methods of that Committee to make its work more efficient, in accordance with the recommendation of the Committee of Experts. With regard to the maquila sector, he indicated that since 1997 there had been a code of conduct in the textile industry which was based on the fundamental labour Conventions, under which over 300 companies had received certification for compliance with standards and over 250,000 workers had benefited to date, with compliance being verified by independent auditing companies. Moreover, companies in the sector were constantly monitored and inspected by inspectors from the Ministry of Labour and Social Welfare, and also by labour auditors for the international brands with which they had commercial relations. Companies in the garment and textile industry received an average of five labour audits a year from each of their clients, with a view to obtaining certification and thereby securing contracts. As a result, workers’ rights, particularly freedom of association, were fully guaranteed, and workers could choose freely whether or not to establish trade unions. Lastly, he expressed concern that the situation under discussion was being examined by two ILO supervisory mechanisms, which was not conducive to transparency and could undermine the efforts of Guatemala to fulfil its obligations towards the ILO.

The Government member of Panama speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), acknowledged the Government’s political will to foster a culture of compliance and respect for labour rights, including freedom of association, to promote the creation of decent work and social dialogue in the country in coordination with the ILO. He encouraged the Government to continue its efforts to accelerate progress in the implementation of the Roadmap and to redouble its efforts to investigate crimes against trade union leaders and thereby provide the necessary guarantees to protect freedom of association. During the March 2017 session of the ILO Governing Body, GRULAC had noted the actions taken by the new Government to move forward in implementing the Roadmap and had supported the decision adopted by the Governing Body. GRULAC urged all of the partners to continue working together in a constructive manner on the implementation of the measures adopted and other future measures to be agreed between the tripartite partners, reinforcing and participating actively in social dialogue with a view to achieving durable solutions and the full application of the Convention in the country. GRULAC reiterated its commitment to fundamental rights at work, especially freedom of association and collective bargaining. Recognizing the technical assistance provided by the Special Representative of the ILO Director-General in Guatemala and its importance for the full implementation of the Roadmap, he requested the Office to continue providing that support. Finally, GRULAC reiterated its concern regarding the simultaneous use of supervisory mechanisms to deal with the same allegations regarding a country that was already being examined by the Governing Body. The unnecessary duplication of mechanisms could weaken the functioning of the ILO supervisory system. Guatemala had demonstrated political will to improve its industrial relations system and create a better future for the exercise of all fundamental labour rights. He considered that strengthening social dialogue and mutual trust between the social partners and the Government, with support from the ILO and international employers’ and workers’ organizations, was a very important part of continuing to assist a country that was cooperating with the ILO’s supervisory mechanisms. He emphasized that the progress achieved by the Government should be assessed objectively, in the hope that the case could be finalized soon.

The Government member of Malta speaking on behalf of the European Union (EU) as well as Albania, Bosnia and Herzegovina and Montenegro, recalled the commitment made by Guatemala under the trade pillar of the EU-Central America Association Agreement to effectively implement the fundamental ILO Conventions. The case referred to very serious allegations on freedom of association that were being closely examined by the Governing Body under the procedure under article 26 of the ILO Constitution. He reiterated the need to avoid in so far as possible the duplication of procedures and efforts. For the sake of consistency, he recalled the views expressed at the Governing Body in March 2017: (1) he acknowledged the commitment of the Government to ensure respect for the rule of law in the country and its increased engagement with the ILO, as well as the advances made regarding social dialogue through the recent adoption of a new law on the labour inspectorate sanction powers; (2) he reiterated the call for a new law on freedom of association and the right to organize to be adopted before the meeting of the Governing Body in November 2017, in full conformity with the Convention and after thorough consultations with the social partners; and (3) he expected rapid, concrete and substantial progress on the Roadmap, including investigations of the murders of union officials, the strengthening of prevention and protection mechanisms, the implementation of reinstatement orders and the development of the awareness campaign.

An observer representing Public Services International (PSI) highlighted that violations of freedom of association in Guatemala were not limited to the activities of union leaders, but also included serious State interference in the autonomy of trade unions, in violation of the Convention. This interference had peaked with challenges in the courts to collective agreements freely signed by trade unions and the State in its capacity as employer. Union leaders had faced criminal charges for participating in these negotiations. The public smear and stigmatization campaign against trade unionism that was being expanded must cease with immediate effect. The State should carry out its role of promoting and developing freedom of association. He considered that the State had, in that respect, put itself at the service of the business sector that were developing the legal strategy for the Office of the Public Prosecutor. The ILO needed to call on the Government of Guatemala to immediately cease its acts of interference and persecution of trade union leaders. The violation of freedom of association had reached such a level that all leaders were being taken to court, with judicial rulings that protected ministries and institutions so that trade union action could be criminalized and the agreements concluded ignored. Moreover, agreements in the public sector had been subject to delays in their approval by the Ministry of Labour and Social Welfare. He also denounced the dismissal of trade union leaders in the public sector, with the aim of intimidating workers and the dissolution of trade unions. A Commission of Inquiry was urgently needed before all trade union leaders in Guatemala were convicted for exercising their rights, or worse still murdered with total impunity. The problems stemmed from the culture of hate that the anti-union media had spread against social and trade union action. He recalled that dialogue was the means of resolving such matters.

The Government member of Switzerland indicated that her country supported the statement made on behalf of the EU. Strong and lasting labour relations, based on social dialogue and trust, were key for sustainable development. Switzerland supported the recommendations of the Committee of Experts and the conclusions of the Governing Body. She called on the Government and the social partners to implement the whole Roadmap without delay. The persistence of violence and harassment against trade unionists and impunity were a matter of concern. She hoped that the ongoing prosecutions would be brought to a successful conclusion with the imposition of effective sanctions, and that the Government would adopt legislation in accordance with the Convention as soon as possible. Lastly, she encouraged the Government to continue its efforts to promote social dialogue in the necessary atmosphere of trust. In this regard, she welcomed the cooperation of the ILO.

The Worker member of Spain speaking on behalf of the General Union of Workers (UGT), the Trade Union Confederation of Workers’ Commissions (CCOO) and the trade unions of Belgium, France, Germany, Italy, Norway and Sweden, expressed solidarity with all trade unionists, and citizens in general, who were risking their physical integrity, and even their lives, to protect human rights and fundamental labour rights, particularly in Guatemala, where at least 84 trade unionists had been victims of union repression and its impunity in the country. He indicated that the Committee of Experts, the Committee on Freedom of Association and the Conference Committee had all examined complaints of serious breaches of the Convention in Guatemala and had urged the Government to adopt the necessary measures in law and practice in order to remedy those violations. Referring to the requests made by the Committee of Experts in its observation, he indicated that the Government’s response had been inadequate and that it was far from resolving the situation of serious failure to comply with both Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In that regard, he regretted that trade unionists in Guatemala continued to suffer from physical attacks, threats and murder, and that there was still no judicial protection for the effective investigation of these crimes. He said that the Government continued to obstruct the registration of trade unions, the enforcement of judicial decisions for anti-trade union dismissal and the exercise of collective bargaining. The Government was also attempting to carry out a reform of the Penal Code reform to criminalize the peaceful exercise of the right to strike. In that context, he called on the Committee to invite the Governing Body to appoint a Commission of Inquiry to examine the non-application of the Convention by the Government of Guatemala.

The Government member of Honduras recognized the continued political will of the Government of Guatemala to promote compliance of and respect for labour rights, including the right to freedom of association. He encouraged the Government to redouble its efforts to shed light on the crimes committed against trade union leaders and to provide the necessary guarantees to protect freedom of association. He recalled the importance of tripartite dialogue and requested all parties to continue working together constructively with a view to finding lasting solutions and achieving the full application of the Convention in the country.

The Worker member of the United States, speaking also on behalf of the Canadian Labour Congress (CLC) and the Central Workers Union Confederation of Brazil (CUT), made reference to the increased citation of ILO standards in trade agreements. Governments often include commitments to honour the ILO Conventions that this Committee supervises. We must point out that the increasing citation of ILO standards in such agreements is accompanied by the complete failure of our Governments to use these standards to protect freedom of association in the context of international trade. Guatemala and the United States are two such Governments, among many. With respect to the Central America and Dominican Republic Free Trade Agreement (CAFTA–DR), which required the parties to protect freedom of association, the Government of Guatemala had persistently failed to comply with the Convention, the country continued to receive trade benefits. The CAFTA–DR arbitration panel had heard arguments touching almost entirely on the application of the Convention by Guatemala. The results of the dispute settlement were not yet public, more than nine years since the submission of the workers’ petition. The Conference Committee had also expressed serious concerns in relation to the present case, which was also examined in the Committee on Freedom of Association and under the procedure under article 26 of the ILO Constitution. Since 2007, workers filing complaints had documented violations of Convention No. 87 and updated cases annually showing that the Government had failed to act over the last ten years despite proof that union leaders were offered bribes to quit their jobs and to convince workers not to join unions; and that workers were fired for joining unions or not disbanding unions. The Government did not investigate, prosecute, and punish employers who violated freedom of association. New violations of cases of dismissal of union leaders and members continued to this day. In 2015, an employer with 1,200 workers had refused to bargain with the union chosen freely by over 66 per cent of its workforce and had signed an agreement with another group representing fewer than 3 per cent of workers. One more current example, among many: starting in July 2016 with the formation of a union in the food sector, the employer had fired 150 union leaders and members. There was a judicial order for the employer, Grupo Bimbo, to reinstate the workers but as in over 2,200 such orders, there had been neither compliance nor enforcement.

The Worker member of Colombia said that in Guatemala the murders of trade union leaders and members were not effectively penalized or prevented. Impunity prevailed. In 2016, the Committee had called on the Government to investigate all acts of violence against trade union leaders and members. However, there had been no convictions in the majority of cases, or they had been attributed to causes other than trade unionism. In 2016, the Committee had also asked the Government to draw up draft legislation to bring the law into conformity with the recommendations of the ILO supervisory bodies. However, although the Government had reiterated its commitment to adjusting its legislation, it repeatedly disregarded its responsibilities in that respect, with obstacles to freedom of association and provisions inconsistent with the Convention remaining in the national legislation. After reiterating the solidarity of Colombian workers with those of Guatemala, he suggested that the Committee should call on the Government to provide improved protection for trade union leaders and take the necessary measures to investigate the crimes committed against trade unionists, clarify the true motives and hand out exemplary punishments to the perpetrators and instigators.

The Government member of the United States congratulated the Government on the enactment of legislation that restored the authority to impose sanctions to the Ministry of Labour and Social Welfare. That was an important step in addressing serious concerns about the effectiveness of labour inspections. The next step would be to ensure the effective implementation of the legislation. He urged the Government to allocate additional resources to the labour inspectorate to ensure sufficient and effective inspections throughout the country. He also urged the Ministry to promptly enact complementary inspection protocols to provide specific guidance to investigators in the investigation of complaints related to freedom of association and collective bargaining and ensure that violations were remedied. He further urged the Government to improve compliance with labour court orders. Several other freedom of association issues of concern had been well-documented in the conclusions of the ILO supervisory bodies. He hoped that ? tripartite Bill, developed in consultation with the ILO and that took into account all of the Committee’s recommendations, would soon be enacted and effectively implemented. He also hoped that the Government, in consultation with the trade unions and the ILO, would address the issue of the delays in the registration of labour unions. Anti-union discrimination persisted, especially in the maquila sector, where no specific measures to address trade union rights existed. He urged the Ministry of Labour and Social Welfare to work closely with the Ministry of Economy, the tax authority and the Social Security Institute to develop and apply strategies to protect freedom of association and collective bargaining rights in that sector, including joint inspections and the implementation of existing laws that required the removal of Government benefits in cases of non-compliance. Finally, he remained concerned at the low rates of convictions in cases of murdered trade unionists. He called for the effective application of existing instruments intended to improve criminal investigations, and increased information sharing between unions and investigative bodies.

An observer representing IndustriALL Global Union noted with concern the incapacity of the Government to give effect to the Convention and to prevent the increase in anti-trade union violence in the country. According to the recent ITUC Global Rights Index, Guatemala was one of the ten worst countries for workers, in which trade union members were harassed, threatened, subjected to physical violence and persecution, and were even murdered, simply because they wished to exercise their right to freedom of association. An affiliated organization, the Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS), had reported violations committed by enterprises against two trade unions, to which the Government had failed to respond. A trade union from the textile sector, which had been legally established, had met with resistance when it attempted to become fully operational and exercise its right to engage in collective bargaining. Its members and leaders were harassed on a daily basis, with no intervention by the Ministry of Labour and Social Welfare. Another trade union, which had been established for over five years, continued to experience the dismissal of its leaders and incidents of harassment. Despite its legal victories supporting its right to exist, the enterprise continued to refuse to negotiate a collective agreement with the union. He called on the Committee to make a clear and unambiguous recommendation to the Government to take the necessary measures to ensure that enterprises operating in the country fully complied with the Conventions ratified, and respected the rights of all workers.

The Employer member of Chile emphasized that, as in 2016, the Committee had examined the Government’s compliance with the Convention, and that the conclusions of the Committee, and the latest comments of the Committee of Experts, showed that this was a case of clear progress. He drew attention to the information provided by the Government on Decree No. 7-2017, which established an inspection procedure aimed at punishing labour violations and promoting a culture of compliance with labour rights and duties. The Committee of Experts had observed with interest the content of Bill No. 5199, submitted by the Government to the Congress of the Republic on 27 October 2016, recognizing that the text incorporated many of that Committee’s previous observations. With reference to the Committee of Experts’ comments on serious acts of violence against trade union leaders and members, he highlighted that in 2016, in the Committee, the CACIF had stated that, without downplaying the violence reported against trade union leaders, a general climate of violence affected the entire country, and it was therefore necessary to improve without delay the speed and efficiency with which justice was applied. That was particularly relevant because the official information provided by the Office of the Public Prosecutor that the courts in their rulings dismissed trade union activities and the defence of the labour rights of the victims as the motives for their violent deaths. For Guatemalan employers, it was paramount for the Government to guarantee social peace, and protection and respect for the fundamental rights of all citizens, and particularly the right to life. He nonetheless noted with concern that the Committee of Experts was urging the Government to create special courts to deal more rapidly with crimes and offences committed against members of the trade union movement. If that recommendation were adopted, it could result in special and differentiated treatment for a specific group of the population, although the official figures did not show that the crimes and offences committed against trade unionists were due to their activities. The situation was also very delicate as the Committee of Experts was stretching its mandate to the extreme by proposing under the Convention the creation of specialized courts with criminal jurisdiction. In conclusion, he hoped that the Government would pursue its efforts to speed up the application of justice in an appropriate and efficient manner, to protect all citizens, irrespective of their activities, and to ensure due respect for freedom of association and the protection of the right to organize.

A Government member of Panama endorsed the statement made by GRULAC, and welcomed the written information submitted by the Government. He highlighted the action taken by the Government and the authorities of the three branches of the State to achieve the progress required by the social partners in the country. He urged the Government to take further steps to protect freedom of association, which was synonymous with industrial peace.

The Worker member of Burkina Faso underlined that violations of freedom of association in Guatemala had resulted in the deaths of dozens of persons, and emphasized that all human rights violations were to be condemned, regardless of the country in which they occurred. Tribute should be paid to all of those who lost their lives every day in defence of freedom, integrity and human dignity. Such remarkable individuals were found not only in employers’ and workers’ organizations, but also in governments. While inviting the Government to comply strictly with international labour standards, he called on the Committee members to ensure that the ILO demonstrated credibility in its approach to addressing these issues, and backed up words with action.

The Employer member of Honduras welcomed the information provided by the Government in response to requests which had been made by the ILO over a period of many years. He expressed appreciation for the information regarding the Labour Code reform proposals which would strengthen freedom of association and would undoubtedly be a tool for social peace. He supported the comments made by the CACIF to the Committee of Experts. He highlighted the work carried out by the Special Representative of the ILO Director-General in Guatemala, in accordance with the Memorandum of Understanding signed in 2013 and the Roadmap. He noted that criminal investigations were now carried out with more speed and determination and observed that the information provided by the CICIG revealed the absence of a climate of anti-trade union violence. He concluded that the ILO should note the significant progress made through the strengthening of institutions and social dialogue.

The Government representative emphasized that, with regard to the strengthening of the protection measures for trade unionists, the budget had been increased by GTQ400 million, mechanisms for coordination and communication with workers had been reinforced and a process had been commenced for the strengthening of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. She indicated that the inclusion of former prosecutors from the Office of the Public Prosecutor into the team of the Ministry of the Interior and the use of new investigation technologies and tools had made it possible to ensure greater flexibility in the investigation of acts of violence. She emphasized that in 2016 and 2017 more trade unions had been registered than in previous years, and that a forum for dialogue had been established, in which it had been agreed to address a series of subjects, including the reform of the procedure for trade union registration, which had been proposed by the trade unions. She also recalled that there were regulations in Guatemala for the registration of trade unions and specific requirements that needed to be fulfilled so that the Ministry of Labour and Social Welfare could grant recognition. She welcomed the fact that the Committee of Experts had noted with interest Bill No. 5199, which had been submitted to the Congress of the Republic on 27 October 2016, as it took on board most of that Committee’s earlier observations. She expressed support for social dialogue and expressed her full willingness to participate in any discussions that could be requested by the constituents, taking into consideration the fact that the Congress of the Republic had set specific dates to receive the agreements, after eight months had elapsed. During that period Congress had granted several extensions in view of the additional time requested by employers and workers, without counting more than ten months that had been granted by the Ministry of Labour and Social Welfare in 2016 for views to be provided as, with much regret, a communication written and signed by workers had been received indicating that they would not participate in the process of the formulation of the Bill. She nevertheless expressed confidence that the Bill would be approved as soon as possible, noting that it contained the elements pointed out by the Committee of Experts. With reference to collective agreements in the public sector, she emphasized that the administration and control of the quality of expenditure were a priority for the Government which, rather than seeking to limit collective bargaining, was endeavouring to ensure that public resources originating from the taxation of citizens were taken into consideration prior to negotiations, based on rational and transparent budgetary measures. She reiterated her concern and consternation at the loss of human lives as a result of the violence in the country, including those of trade unionists, and indicated that specific cases had been investigated in which the victims had been trade unionists and it had been scientifically proven that there was no trade union motive. In conclusion, she reiterated the readiness, will and commitment of the Government and called for further transparent, honest and truthful dialogue.

The Employer members thanked the Government for its detailed explanations and welcomed the action it had been taking to make progress on the issues discussed. They referred to the report submitted in March 2017 by the Special Representative of the ILO Director-General in Guatemala to the Governing Body, highlighting the manner in which the social partners were being involved. With regard to the nine indicators identified as the basis for follow-up to the Roadmap, the Employer members recalled that the Tripartite Committee on International Labour Affairs was working to identify problems and seek solutions in conjunction with the social partners, and expressed the hope that such reviews would continue to be conducted regularly. They also drew attention to the fact that in March 2017, the President of the Republic had held a meeting with workers and employers with the aim of drawing up an action plan to continue the process of the implementing the Roadmap, and they expressed the hope that the President would remain involved in the process. The Labour Commission of the Congress had provided support to members of Parliament to raise their awareness of fundamental principles and rights at work. Awareness-raising campaigns on freedom of association had also been carried out with employers, and had been extended to cover various sectors, with the aim of achieving the objectives of Agenda 2030 for Sustainable Development. Three meetings had also been held with journalists, columnists and opinion makers. With regard to judicial bodies, there had been progress in developing rules of procedure for labour and social welfare courts and regulations on the enforcement of sentences. It was to be hoped that, with the Supreme Court of Justice, progress could be made on a code of labour procedure. They also highlighted the bipartite agreements concluded by the social partners and emphasized the importance of the Government accepting and implementing those agreements to deepen understanding between the social partners. Some actions should be taken urgently, such as strengthening the investigations into clarification of the facts and prosecutions of the murders of trade union activists and leaders, a significant increase in the percentage of reinstatement orders, trade union registrations, the more effective use of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining and, lastly, the expansion of the mass awareness-raising campaign. In March 2017, the Governing Body had called for further engagement in constructive social dialogue to achieve the full implementation of the Roadmap. That course of action should be endorsed by the Conference Committee, and should be included in its conclusions. The conclusions should also include support for dialogue between the social partners at both the national and international levels and the adoption of the draft legislation that had been developed at the earliest possible juncture. With regard to freedom of association and civil liberties, the Employer members considered that there was a need for more in-depth consideration of the causes of violence that affected trade union members, including by the Committee of Experts itself, because it seemed that there were no trade union motives. Concerning legislation they recalled that issues involving the right to strike should not be included in the Committee’s conclusions, and that the Government was under no obligation to act on them. Regarding trade union registration, they said that the trade unions themselves needed to take responsibility and make constructive commitments in the dialogue with the Government to make progress with regard to registration, as the workers had rejected specific proposals from the Government to improve the registration system. It was hoped that the workers would support the development of a joint proposal for improvements in the registration system in Guatemala. With regard to the dispute settlement mechanism relating to freedom of association, they considered that it was for the Government to determine the modalities. They also considered that it was for the Government to decide how the campaign to strengthen freedom of association and collective bargaining should be implemented. Concerning the maquila sector, they considered that there were no specific indications of non-observance of the Convention, and that that issue should be regarded as settled. Indeed, much had been done in the context of the codes of conduct in the sector. Moreover, specific sectoral action did not come within the scope of the Convention. The number of trade unions existing in a sector could not be the sole indicator, since there were both positive and negative aspects to freedom of association, and agreement was needed in that sector. Lastly, they reiterated that the case should be dealt with in the Committee on Freedom of Association as part of Case No. 2609 and by the Governing Body.

The Worker members noted with concern that, despite some isolated achievements, not enough progress had been observed in Guatemala. The Government had failed to implement the conclusions adopted in 2016 by the Committee, including those related to the need to investigate violence motivated by trade union activities of the victims and to punish perpetrators. It was clear that not enough financial and human resources had been allocated to the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor. Without resources, it was unlikely that the protocol for the implementation of immediate and preventive security measures for trade union members could be properly implemented. In terms of legislative changes, the latest Bill submitted to Congress to bring the legislation into conformity with the Convention did not fully resolve the issues raised by the Committee of Experts. The Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had not been able to operate fully. The Ministry of Labour and Social Welfare had introduced new obstacles for the registration of trade unions. The levels of non-compliance with court orders in cases of anti-union dismissal were unacceptable. There was no effort so far to reach out to broader Guatemalan society through the mass media. On the contrary, the Government had attacked a number of collective bargaining agreements in the public sector. Public sector unions were being stigmatized by the Government as if they were working against the national interest. The Worker members urged the Government to: (1) continue to provide prompt and effective protection for all trade union officers and members who were at risk and redouble its efforts to combat impunity, by ensuring that the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor was provided with appropriate financial and human resources; (2) through ILO assistance and consultation with the social partners, review the Bill submitted to Congress to bring the legislation into conformity with the Convention; (3) undertake, in consultation with the social partners, an evaluation of the terms of reference and operation of the Committee for the Settlement of Disputes and include in that process an examination of the complementarity between that Committee and the judicial mechanisms for the protection of freedom of association in the country, together with an analysis of their effectiveness; (4) eliminate the various legislative obstacles to the freedom to establish trade unions and, in consultation with social partners, and with the support of the Special Representative of the Director-General in Guatemala, revise the procedure for processing applications for registration; and (5) disseminate the awareness-raising campaign on freedom of association in the mass media and cease immediately to stigmatize and denigrate existing collective agreements in the public sector through the media.

Conclusions