Cas individuel (CAS) - Discussion : 2023, Publication : 111ème session CIT (2023)

Written information provided by the Government

Trade union rights and civil liberties

1. Work done at the institutional level. In order to achieve an effective investigation into acts of violence against trade union leaders and members, the Office of the Public Prosecutor has been addressing specific applications for prosecution to the competent courts, in order to secure penalties for the instigators and perpetrators of acts causing the deaths of trade union leaders and members, taking Instruction No. 1-2015, part of the comprehensive case management system (GIC), as the starting point for the investigation. As can be seen in table 1 below, the Government shows that it has made systematic, ongoing progress year-on-year in obtaining rulings in cases relating to the deaths of trade union leaders and members which have been reported to the ILO, with reference to key indicator No. 1 of the road map for the Convention. Moreover, the trade union sector has been given priority in the policy against criminal activity, with the opening of a Section Prosecution Office which addresses relevant matters, its focus strengthened by a budget enabling procedural outcomes which are timely, objective, relevant and based on the rule of law.

[Table not reproduced: Rulings obtained and reported to the Committee of Experts on the Application of Conventions and Recommendations at the ILO (2020, 2021, 2022 and 2023)]

2. Coordination on matters of security. The Office of the Public Prosecutor is responsible for preparatory procedures and directs the National Civil Police in its investigatory role, while the National Civil Police has the task of investigating incidents which are automatically liable to incur punishment and prosecution, preventing these from giving rise to subsequent consequences, and identifying individual suspects, among other things. Accordingly, staff of the Ministry of the Interior provide security for trade unionists, in the form of perimeter or personal protection measures, depending on the respective risk assessment which is carried out quickly (in not more than a week). The security measures can be requested by the Office of the Public Prosecutor, the injured party, the Human Rights Procurator’s Office, and the Ministry of the Interior. For 2023, all cases handled by the unit for the protection of trade unionists have been at the request of the Office of the Public Prosecutor and so all of them involve an investigation process. While the respective risk assessment is being undertaken before the relevant security measures are provided, the Ministry of the Interior provides the trade unionist with the respective preventive measure. In this way, rapid, effective and appropriate protection is provided to trade union leaders and members who are at risk, with the aim of preventing any further acts of anti-union violence. The Government points out that on the subject of security, the Ministry of the Interior is running canteens for the National Civil Police, with six of them operating in the capital city. This is to prevent any trade union leader or member to whom a security officer has been assigned from incurring any expense.

3. Trade union technical round tables involving the Office of the Public Prosecutor and the trade unions; unit for the analysis of attacks against trade union leaders and members at the Ministry of the Interior, and the trade unions. Since early 2023, the Office of the Public Prosecutor has promoted dialogue forums with the trade unions, taking account of the schedules of the workers’ representatives, and they have agreed a date for addressing specific issues relating to their interests. Otherwise, bilateral dialogue forums have been implemented between the Attorney General and staff, and the head of the Section Prosecution Office and representatives of the trade unions to address subjects of interest to them. Furthermore, from late 2022 to the present time, dialogue has been opened with the workers’ representatives with a view to amending Ministerial Decision 288-2022, in order to cater to the workers’ needs with greater clarity and focus (see GB.346/INS/10, Part III, paragraph 15(1), on combating anti-union violence).

4. The Government reiterates its sadness and deep regret at the 98 cases of death recorded in 2022. The Office of the Public Prosecutor has provided details of the outcome and/or current status of the cases, as follows:

No. of cases / Status of each case

26 / Judgments handed down (26 convictions, 10 acquittals and 1 security measure).

7 / 8 arrest warrants issued.

3 / Scheduled for 2023; some with a date set for the public hearing and at the intermediate stage; three cases not previously brought to court.

46 / “Section 327 closure” procedure: With regard to one case also before the Committee on Freedom of Association (Case No. 2609), the Office of the Public Prosecutor indicates contempt of court by security guards who did not note the entry of vehicles; and on 9 May 2023 proceedings for concealment were opened, with a change of status from “section 327 closure” to “investigation”.

10 / Under investigation (two are being examined by the Special Prosecutor’s Office against Impunity (FECI)).

6 / Termination of criminal proceedings (two cases are also covered by the “section 327 closure” procedure).

98 / Total number of cases reported to the ILO.

With regard to this group of 98 cases, the Government informed the Committee on Freedom of Association in relation to Case No. 2609 that the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) formally delivered to the Attorney General a copy of the recommendations of the Committee on Freedom of Association regarding Case No. 2609, contained in its 391st Report (October–November 2019), so that with due account taken of these recommendations a solution would be found to the cases of merit. Furthermore, a request was made to formalize the trade union technical round table with an instrument emanating from the Attorney-General with a view to achieving legal certainty. In this regard, the outcome of the 35 cases referred to by the Committee on Freedom of Association and the CNTRLLS are incorporated into the list in point 4 of this document, and the trade union technical round tables are active and have the participation of the workers, according to the dates supplied by them.

Procedural aspects. The Government states that the Office of the Public Prosecutor, in follow-up to the commitments made during special meeting No. 1-2023 of the CNTRLLS held on 29 March 2023, invited the representatives of the sectors within the National Tripartite Committee to a meeting on 31 May 2023, at which it provided information on procedural aspects and indicated generally the grounds for the prosecution decision reached on the cases and the judicial consequences, stating that the status of these cases can change from “section 327 closure” to “investigation” (as in a specific case concerning the death in 2007 of a member of SITRABI, the status changing during May 2023). The Government emphasizes once again that the cases can be reopened at any time and that regarding the decision to apply the outcome of “section 327 closure” to the 46 cases, this was not a unilateral judicial decision; rather, the cases were submitted to an in-depth investigation involving full working days and analysis of each of the cases. Moreover, the 46 “section 327 closure” cases included three cases processed under the “Coatepeque phenomenon” heading, regarding the numerous procedures carried out by the Office of the Public Prosecutor (275 procedures for the 3 cases), the exhaustive analysis of each case – with long working days effected by high-level coordination teams from the Office of the Public Prosecutor –, and these were handled in compliance with Instruction No. 1-2015, with no anti-union motives found in any of these three cases.

(a) Procedure of closure under section 327 of the Code of Criminal Procedure (CPP) of Guatemala. The closure procedure is used: (i) when it has not been possible to determine specifically the person who is accused of committing the crime, even though appropriate investigations have been carried out; or (ii) in the event of contempt of court. No judicial authorization is required and it does not result in case law. The investigation must be resumed if new elements emerge which make it possible to identify the accused or the accused has been arrested.

The Office of the Public Prosecutor created the procedure of closure through Instruction No. 04-2005. The investigating entity is obliged to use the necessary resources to ensure a successful criminal prosecution, and where this cannot be done owing to material impossibility (a combination of legal or physical circumstances which makes it impossible to deliver a judgment on its own terms), it is necessary to regulate the appropriate use of the closure procedure. This is based on the principles of: (i) efficacy (ensuring that action is taken in accordance with the obligation to guarantee the exercise of the fundamental rights to be protected); (ii) legality (prosecutors must fulfil the criteria established by section 327 of the CPP in order to close the files dealing with criminal actions); and (iii) recognition of the victims (the Office of the Public Prosecutor is obliged to provide victims with the necessary means to assert their rights within the judicial process. Accordingly, prosecutors must notify victims in writing of the decision to close the case. This is without prejudice to notifying the parties established in the process ordered by section 327 of the CPP).

According to Instruction No. 04-2005, the closure procedure must be applied in accordance with section 327 of the CPP, taking account of: (i) identification of the accused; (ii) the previous steps taken in relation to the “section 327 closure” procedure in general and specific proceedings concerning crimes against life and crimes against life involving the use of firearms; and (iii) when the victim expressly declines to support the investigation, prosecutors must seek to obtain information by any other means, especially when the crimes are of social importance or have a serious social impact. Prosecutors must also coordinate with the Office for the Care of Victims in order to meet the victims to provide them with support and gather information on their interests to see whether it would be possible to obtain their support during the investigation.

(b) Termination of criminal prosecution. Under the CPP, a prosecution is terminated by the competent court on account of: the death of the accused; amnesty; the statute of limitations; payment of the maximum fine; the end of the trial period where a suspension of criminal proceedings has not been revoked; the revocation of individual action status in cases involving private action offences; the withdrawal of the complaint at the request of a party in cases involving private action offences; the death of the injured party in cases involving private action offences, though the action already initiated by the injured party can be pursued by that person’s heirs or successors, except in cases specified by the Penal Code. The statute of limitations runs, is suspended or is interrupted separately for each of the parties to the offence, unless otherwise expressly provided for.

Application of the Convention in practice

5. Public registration of trade unions. The Government, through the Ministry of Labour and Social Welfare, reports that it has issued Ministerial Decision No. 214-2023 on the procedure for issuing union identification cards to active members of the administrative structure of trade union organizations. The objective of this is to regulate the procedure in a clear and simple way, free of charge, in order to provide workers with badges that they can use to identify themselves before the relevant entities, in order to freely exercise their union rights. As the public registration of trade unions, the approval of collective agreements on working conditions and the campaign on freedom of association and collective bargaining are key indicators of the road map for Convention No. 87, the Subcommittee on the Implementation of the Road Map has addressed them at two sessions in 2023, with the participation of officials from the Labour Directorate, the General Secretariat and the Technical and Legal Advisory Council. Here there has been interactive tripartite dialogue on the following topics: legal grounds, procedural actions, previous actions, notifications and challenges still needing to be addressed. Lastly, in addition to the efforts made by the Government on the freedom of association campaign, the Attorney General is proposing an initiative to work towards compliance with key indicator 7 of the road map of the Convention.

6. Reinstatements. Regarding the space for dialogue with workers, the President of the Chamber for the Protection of Rights and Preliminary Hearings continues to hold bilateral meetings with representatives of the workers on the concerns raised.

7. Approval of collective bargaining agreements on working conditions. In accordance with key indicator 9 of the road map, the Government of Guatemala, through the Ministry of Labour and Social Welfare, states that in the institutional context of Guatemala, the approval of collective bargaining agreements is understood to entail an examination of their legal validity in form and substance. Among the main issues that have been observed in the public sector in Guatemala is the examination of collective bargaining agreements on working conditions. Through this experience we have observed that if the Government, as the competent authority on these matters, conducts an adequate examination for the approval of collective bargaining agreements in the public sector, it will help to prevent situations such as the one highlighted by the Committee on Freedom of Association. To this end, it was decided that the approval process should involve as much as possible the examination of the laws currently in force. Even though the negotiating and signatory parties are public authorities and organizations of public employees or workers are inevitably considered to be aware of the laws in force which regulate the agreements they negotiate and sign, a certain knowledge gap remains which results in clauses that cannot be duly validated from a legal perspective.

This means that the examination of the legal or juridical validity of a collective bargaining agreement on working conditions should include an examination which covers at least the following elements: (a) recognition that article 106 of the National Constitution establishes collective bargaining as a constitutionally desirable means for improving the minimum social rights of workers, in this case workers in the public sector; and that, to this end, the promotion and protection of this fundamental right are established as an objective of the State; (b) within the framework of the full exercise of the fundamental right to collective bargaining, the signatory parties are considered to have complete freedom to negotiate employment and working conditions, as established in the Collective Bargaining Convention, 1981 (No. 154); however, this freedom is subject to the obligation on the parties to respect the law and public order in the negotiation process, in accordance with the 2013 General Survey of the Committee of Experts concerning labour relations and collective bargaining in the public service, in observance of the fact that collective bargaining must always be carried out in the manner prescribed by law; and (c) this basic condition of legality applies particularly in the public sector where public authorities, as employers, may negotiate agreements as long as the content agreed upon falls within the legal competence conferred on them as public officials under the Guatemalan Constitution.

The Government reiterates its unwavering commitment to intensifying its inter-institutional and state efforts to comply with the Convention.

Discussion by the Committee

Chairperson – I invite the Government representative of Guatemala, the Minister of Labour and Social Welfare, to take the floor.

Government representative (Minister of Labour and Social Welfare) – I am grateful for this opportunity for the Government of Guatemala, accompanied on this occasion by representatives of the judges of the Supreme Court and the Constitutional Court, as well as high-ranking representatives of the Public Prosecutor’s Office and the Ministry of the Interior, to be able to provide information on the action taken by the Government of Guatemala in relation to the observations made by the Committee of Experts concerning the Convention, as it has done repeatedly in the Committee on Freedom of Association and the Governing Body in their various sessions regarding the decisions reached between 2018 and 2020, in which the Government was urged, in conjunction with the social partners in Guatemala and with ILO technical assistance, to continue making every effort and devoting the necessary resources to achieve a sustainable and full application of the provisions of the road map. The Government noted with satisfaction the three-year ILO technical assistance and cooperation programme, aimed at enhancing Government efforts to ensure compliance with the Convention. Guatemala has honoured its international commitments with its own budget, plus the financial assistance from the ILO, through its own funds and other programmes since 2022, in its third year of implementation. The Government also noted the information provided by the Office in document GB.346/INS/10, in particular the priority actions identified during the joint mission of the ILO, the International Organisation of Employers (IOE) and the ITUC. Allow me therefore to reiterate that Guatemala continues to provide information and emphasizes that it has made significant progress on the implementation of the road map and on the points which were raised by the joint mission and adopted by the National Tripartite Committee on Labour Relations and Freedom of Association. Those points include the following:

(1) A significant increase in the institutional budget of the Special Prosecutor’s Office at the Public Prosecutor’s Office dealing with crimes committed against trade union leaders and members, which we deeply regret. In addition, an increase in the budget for security measures for the workers’ sector adopted by the Ministry of the Interior, and the opening of a Pluripersonal Court of Penal Resolution dealing with offences of non-compliance in labour-related matters, as part of the judiciary initiative, with some US$3 million allocated to this area. As a result of the above, with regard to the 26 cases submitted by the Public Prosecutor’s Office and resolved by the judiciary, convictions stand at 80.77 per cent and acquittals at 19.23 per cent.

(2) By comparison with the years 2016–22, crime rates have decreased in Guatemala. However, the Ministry of the Interior has established a forum for dialogue at the highest level in order to address the subject of attacks against trade union leaders and members, also regulated by a ministerial decision. There are established risk assessment procedures for the provision of security measures for trade unionists. Institutional efforts have been made to provide speedy and effective protection to all trade union leaders and members in situations of risk, preventing any fresh acts of anti-union violence from being committed. Moreover, the Government of Guatemala has established canteens for officers of the National Civil Police, which prevents trade unionists receiving protection from the above-mentioned Ministry from incurring any expense.

(3) With regard to legislative issues, the Government complied as stated by the joint mission by bringing legislative proposals before the legislature within the time frames indicated in the joint mission last year.

Nevertheless, we are facing challenges regarding fulfilment of our obligations and the effective application of the Convention with regard to standards-related issues. In March 2023, we asked the ILO for technical assistance so that we can support this esteemed organization in examining the legislative proposals, and we hope that the response from the Office will be in the affirmative, as it always has been in the past. We are now supported with funds from the EU through the assistance and cooperation programme which has been in force since September 2022. For this we are very grateful; the combination of this and the Government’s efforts yields greater certainty that we will achieve the goals to which we have committed.

(4) With regard to the application of the Convention in practice, we are grateful for ILO support and technical assistance with regard to the public registration of trade unions. The Government would like to point out that major progress has been achieved in the awareness-raising campaign on freedom of association and collective bargaining, providing posters in 18 priority departments of Guatemala, which initially were supposed to bear the logos of the most representative employers’ and workers’ organizations. However, with regard to the comments made by the workers, publicity regarding the awareness-raising campaign has only involved the Government logo. It should be noted that the information on the awareness-raising campaign concerning freedom of association has been shared with the Subcommittee on the Implementation of the Road Map, which forms part of the National Tripartite Committee. I emphasize that at the meeting of 31 May 2023 the workers welcomed the initiative of the Attorney-General of the Republic of Guatemala to conduct an awareness-raising campaign on freedom of association, where their support was requested to ensure its implementation. Once again I stress the fact that our greatest strength has been and still is tripartite dialogue within the National Tripartite Committee, a forum which has been attended by the Attorney-General. And now I give the floor to the Secretary against Corruption from the Public Prosecutor’s Office so that he can provide further details on this matter.

Another Government representative – With regard to the urgency of investigating all acts of violence against trade union leaders and members, in order to apportion responsibilities and punish both the instigators and perpetrators of such acts, taking full account of the investigations and the trade union activities of the victims, the Public Prosecutor’s Office of Guatemala would point out that in 2017 there were 64 municipal prosecutors’ offices. At present, through the appropriate use of the budget, there is now coverage in 340 municipalities throughout Guatemala. In other words, this is 100 per cent national coverage, providing effective access to the justice system for all Guatemalan citizens in their own communities. This means that in cases where trade union leaders and members are affected, the Public Prosecutor’s Office can take the necessary action to address the complaints, via the implementation of a comprehensive case system which deals with new cases in 24, 48 or 72 hours.

With a view to obtaining immediate and vital results concerning the presentation of prosecution requests to the competent court in a timely fashion, the Public Prosecutor’s Office recently obtained ISO 9001-2015 certification in 273 of the 340 municipal prosecution offices, and is in the process of certifying all the prosecution offices at the national level.

Here I must point out that given the importance of the subject and in compliance with the obligations of the State of Guatemala, since 2019 there has been a Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists. This is in the process of being certified under the same quality standard, and this aims to provide a differentiated response in accordance with the needs of the trade unions. It is a response to the phenomenon of crime.

As regards the long-standing cases, these have been examined in depth and in line with prosecution instructions in order to provide a response and reduce prosecution delays.

It is important to reiterate that the Public Prosecutor’s Office is an autonomous auxiliary entity of the judiciary and that the whole Public Prosecutor’s Office, representing the public authorities with regard to investigation and criminal prosecution, is a fundamental pillar in the construction of the State of law, which guarantees compliance with the law, due process and respect for human rights. Hence, if it did not fulfil its legal function, such an omission would imply impunity.

The civic right to file a complaint can never be limited or restricted, and the cases of complaints filed by trade union leaders and members in Guatemala receive special treatment, on the basis of Instruction No. 1-2015 for the effective investigation and criminal prosecution of crimes committed against unionized workers, other labour rights defenders and trade unionists, which is issued by the Public Prosecutor’s Office. The Instruction underlines the importance of working together with the trade unions for the provision of vital information concerning the complaints filed, in which the victims are trade unionists. I reiterate that these are addressed and investigated objectively, impartially and scientifically. Convictions or acquittals handed down under Guatemalan law are not the only forms of settling or responding to complaints.

Recalling the proposals and principles of the United Nations (UN) Charter, there is a need for respect for due process, for each case to move forward in accordance with the law, so that when the judicial ruling is issued, this is what determines with legal certainty the action of the State of Guatemala with regard to the principle of legality. In this context the Attorney-General, accompanied by her technical team, of which I am honoured to be a member, have participated in three meetings of the National Tripartite Committee. We have also held bilateral meetings with representatives of the unions in order to explain the legal concepts or formalities, criteria for application, legal consequences, methodology and grounds, such as the exemplification of cases.

Furthermore, those who wish to make statements in support of the cases have been invited to file supporting complaints or to appear in person in the various procedures so as to participate and express views in the cases, as provided for by law.

I should reiterate that this dialogue forum has been implemented exclusively with the workers. In addition, at the request of the employers and Government within the National Tripartite Committee, an extraordinary meeting was held on 29 March 2023, with a tripartite follow-up meeting held on 31 May 2023, in order to explain the legal concepts and consequences in the cases concerning the deaths of trade union leaders and members.

The closure procedure under section 327 of the Code of Criminal Procedure (CPP), as explained in the documents sent to this Committee, applies when it has not been possible to identify individual suspects or if there has been contempt of court on their part. In other words, the suspect has not appeared voluntarily in court or cannot be located. This does not mean that the case is closed definitively, since that could only result from dismissal of the case. Closure under section 327 means that if elements emerge giving grounds for a prosecution request to be filed with the competent court by the prosecution service or on the basis of an individual initiative, the processing of the case in question can continue. Such a situation has already arisen in the Section Prosecution Office which deals with crimes against trade unionists in returning to the stage of bringing charges when cases already contain sufficient elements to enable a judgment to be handed down. In this regard, the Public Prosecutor’s Office bases this decision on Instruction No. 4-2005 regulating the use of the closure procedure at the Public Prosecutor’s Office.

In the cases denounced for the deaths of trade union leaders and members examined by the Public Prosecutor’s Office, it has not been established that these occurred as a result of anti-union motives or the exercise of trade union activity. However, the Public Prosecutor’s Office reiterates its unlimited commitment to fulfilling its constitutional duty and continuing to intensify institutional efforts to ensure that cases in which trade unionists are the victims are resolved as quickly as possible, independently of cases at the investigation stage or waiting for an arrest warrant to be enforced.

I re-emphasize that the administration of the Public Prosecutor’s Office has an open door policy. The national constituents are therefore invited to maintain an interactive dialogue with the autonomous institutions and state agencies in order to obtain effective justice for all.

Worker members – I would like to pay tribute to brother Carlos Mancilla who passed away in February. He tirelessly represented Guatemalan unions at national, regional, and international level, particularly in the ILO. May we carry forward his vision ensuring that workers’ voices are heard, and their rights are protected.

Few cases have required as much supervision from this House as that of Guatemala. Indeed, this is the 14th time in 20 years that this Committee has heard a case concerning either freedom of association or collective bargaining. While we appreciate that the ILO has spared no effort to address the many serious and persistent violations in the country, through the supervisory system, through technical capacity-building, including the continued financial and political involvement of several governments, through the involvement of the tripartite constituents and so on, it is tragic that so little progress has been made despite so much effort.

In addition to the ILO, the Inter-American Court of Human Rights in a recent case recognized that Guatemala failed to respect freedom of association, including the right to strike. And the UN Human Rights Council, in the report of the last periodic review, in April 2023, raised concerns about violence against trade unionists and impunity for the crimes. But no matter how clear the calls have been, they have not been heard.

Today, the ILO Memorandum of Understanding and road map, developed after a complaint to establish a Commission of Inquiry, remain largely dead letters, with little improvements. In September 2022, an ILO–International Trade Union Confederation (ITUC)–International Organisation of Employers (IOE) mission visited Guatemala out of concern for the lack of meaningful action on the road map, and a one-year priority plan was adopted in order to focus the Government on the most pressing issues. Unfortunately, those issues have not been completed. For example, violence and impunity remain a very serious problem despite constant demands on the Government to address this urgency. Just ten months ago, 45-year-old Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), was murdered. He is only the most recent of the over 100 trade unionists who have been murdered since 2005.

For years, these brutal attacks have gone unanswered. Instead of launching thorough investigations, we hear the Government now dismissing them as mere consequences of a generalized climate of insecurity in the country. This stance downplays the gravity of the situation, further exposing trade unionists to violence and death in the course of their work.

By refusing to acknowledge the specific targeting of trade union leaders and allowing a culture of impunity for perpetrators, the Government effectively condones these acts of violence and perpetuates a culture of impunity.

Anti-union dismissals in the public and private sector are routine and remain a serious problem. The few reinstatement orders which are granted are appealed for years, meaning there is no effective remedy or dissuasive sanction to address anti-union discrimination.

We acknowledge that the Government established three specialized courts to address the crime of non-compliance with labour and social security resolutions and expect that these courts will bring about meaningful results, including speedy and effective justice for anti-union discrimination cases, in line with the Convention.

Other obstacles also persist, including regarding the registration of trade unions. Unions continue to report that employers often challenge the registration of new unions or appeal registration decisions. There are also several cases in which the trade union registrar of the Ministry of Labour rejects or seriously delays the updating of the list of union members. This impedes the exercise of the rights protected under the Convention resulting in low union density.

With regard to the legislative reforms that the Committee of Experts has requested for many years, there still is no progress. In 2018, there was a tripartite agreement on some of the reforms requested. However, these reforms languished for years. In late 2022, following the ILO–IOE–ITUC joint mission, the Government submitted the bill to Congress for its attention, but the lack of any meaningful effort to seek its passage has meant that the bill has not moved and has no prospects of being adopted before the June 2023 elections. To date, no efforts have been made to address the matter of sectoral unions and the modalities of sectoral collective bargaining. With this, there are no possibilities for negotiating above the enterprise level.

Regarding the media campaign, there has been no real commitment by the Government to advance an effective, forceful, and convincing national campaign to reverse union stigmatization and instead promote the free exercise of unionization and eradicate violence against our comrades.

Finally, the efforts that have been made to create opportunities for dialogue with the support of the ILO are not actually leading to results due to an apparent lack of real political will for systemic change.

The Worker members share the Committee of Experts’ statement – and I quote – “expressing its concern at the persistence in law and practice of serious violations of the Convention”. The Committee is also right to note, regarding the priority plan, that it is “vitally important that the expectations generated by the identification of such actions translate into tangible progress.” Clearly, the Government has not met these expectations and we are deeply concerned that the comments of the Government here today give us little hope of tangible progress anytime soon.

Employer members – This is a matter which we have been addressing for a long time. In 2012, a complaint was filed under article 26 of the ILO Constitution and was closed in 2018.

Furthermore, in the course of the follow-up evaluation, in 2013 the Governing Body approved a Memorandum of Understanding at the highest level. In 2014, the outlines of a road map were approved. In 2015, nine key indicators for follow-up of the road map were specifically incorporated. In 2017, a tripartite agreement was reached on four of the six legislative issues. In 2018, the National Tripartite Committee on Labour Relations and Freedom of Association was established, a very important element, through which additional national agreements were adopted, leading to the creation of three subcommittees which are discussing various aspects, including the international matters with which we are occupied here.

At the closure of the complaint it was finally agreed, from 2020, to have a programme of technical assistance and, in particular the Governing Body requested follow-up action in relation to this programme with evaluation of the indicators established in the road map. We consider that there has been compliance with this since reports and attachments in this regard have been presented.

Furthermore, a joint ILO-IOE-ITUC mission took place in September 2022 to follow up on the technical cooperation provided by the ILO and in which, in conjunction with the National Tripartite Committee, a series of priority actions were identified to give a fresh boost to this process.

We would like it to be placed on record that Guatemala has followed up on the commitments made with regard to the various ILO bodies.

Firstly, we would like to thank the Government for sending the requested reports, which describe the action taken to reduce the violence which is such a concern for us, in particular regarding the 98 cases involving deaths submitted in the last nearly 20 years, including 2022. I would like to make this clear, because there are times when this figure is understood as applying to this year or last year. There are 26 cases which have yielded convictions, ten resulting in acquittals and one resulting in a security measure, reflected in the follow-up indicator for matters related to the Convention. We are also grateful for the reports on the action taken by the Government with regard to the National Congress for aligning the legislation in the form which was pledged. There is also the new registration of 29 trade union organizations and the increase in the budget to reinforce investigation and judicial bodies which aim to ensure that the exercise of trade union freedoms and rights in the country are protected in law and in practice.

However, we Employer members categorically repudiate all the acts of violence which have been reported and we deeply regret the deaths which have been reported. Let us hope that all efforts made to investigate and punish the threats and acts of violence cited in the report will lead to genuine change in the prevailing situation. In this regard, and without swerving from our position, we are bound to recognize that in recent years fatalities have decreased in practice, which should encourage the Government to continue working along the path which has been defined.

We observe that the technical assistance and the action taken by the state institutions in Guatemala have not been in vain, and although we would like to see more and better results, we are bound to recognize that progress has been made with regard to the investigation and punishment of crimes against trade unionists and we would hope that this will be extended to the rest of society.

It is also important to bear in mind that although many forms of violence have continued in Guatemala, the national Government has taken various forms of action in line with its commitments, and the participation and commitments of the National Tripartite Committee, and has implemented various policies. Moreover, as we have said on other occasions, regrettably this form of violence does not exclusively involve trade union leaders; most citizens in Guatemala are exposed to it too.

This is not a justification; it is a reality which we cannot conceal. We are dealing with a social phenomenon with its own origin and nature and it still needs to be addressed.

Although – and I stress – this circumstance in no way justifies any acts of violence, we should also not lose sight of the widespread situation of violence since this constitutes an important element of judgement as regards the findings of this Committee.

Under these conditions, let us vote for the Government to continue adopting decisive and effective measures for promoting a climate of non-violence in the country.

I have heard that a representative of the workers said that another UN organization had identified violations of the principle of freedom of association and the right to strike. We would like to recall the position of the Employers, namely that the subject of strike action is not a matter related to the Convention and that this should be addressed in accordance with the legislation in force in each country.

Having made this clarification, we also note, with regard to protection for trade unionists, that this has been reinforced, as already explained by the Government representatives, and all follow-up action related to this has been recorded in the reports.

The Committee of Experts indicated in its comments that, indeed, the Government of Guatemala submitted the Bill on labour matters to the National Congress in timely fashion and in line with agreements.

In this regard, nobody is convinced, obviously, that this Bill has been passed, but we are face to face with the Government and on the basis of the autonomy of the National Congress, we hope that, in line with its internal procedures, this Bill will be debated and, if appropriate, approved. This is so important and corresponds to one of the commitments taken by the Government, and we understand that it has fulfilled them. If only action can be taken to speed things up!

With regard to social dialogue, we can see that the National Tripartite Committee is functioning as established by the road map. We observe that there is a set of conditions and we do regret that not all rulings issued by the judiciary have determined responsibility. But, as we have already said on many occasions, we do not agree with the opinion of the Committee of Experts that any ruling that acquits a suspect signifies a denial of justice.

The justice system involves implementing processes which correspond to the information available and in this case determining responsibility on the part of whoever is concerned. It seems to me that this has been taken into account by the Government so far, with the support of all actions taken in a highly relevant manner with ILO assistance.

I observe that the Government, which is truly facing a situation which we all condemn and feel concern about, has given evidence of interest in accepting all the mechanisms which have been suggested to it. Here we often witness denial of the facts, refusal of support and assistance, and denial of the truth. From our perspective, we are encouraged to see that the Government is maintaining the intention of doing all that is necessary to quell the violence and regrettable acts referred to by the report.

Worker member, Guatemala – This is in memory of our comrade, the recently deceased Mr Carlos Mancilla.

Several years after implementation of the road map began, the overall balance is that none of the commitments made by the Government has been fulfilled. Anti-union policies in Guatemala have intensified. Acts of repression, violence and persecution against trade unionists and the destruction of trade unions are constant. Blacklists and articles in the social media continue to be produced by people linked to certain private sectors which foment hate, including its ultimate expression in the form of murders of our trade unionist comrades. One of the most recent cases of murder was that of Mr Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), in Santo de Castilla, Puerto Barrios, Izabal, which the Committee of Experts referred to in its 2022 report.

We have received complaints from our men and women comrades regarding the actions of prosecutors and/or units of the Public Prosecutor’s Office in the provinces, in which in almost all cases when attacks against trade unionists are denounced they do not examine them, even though this is one of the key objectives of Instruction No. 1-2015, with analysis of the context at the time of the attacks needing to be taken into account.

These facts were reported to the unit at the Public Prosecutor’s Office which investigates attacks on trade unionists. We are waiting for the corresponding reply. In the end, the more than 100 cases of attacks on, and murders of, our trade union comrades which have been documented and reported to this Committee have not been resolved. Nor has a regulatory and institutional framework for the protection of workers against the crimes committed been constructed, much less any progress made in something as simple as the implementation of awareness-raising campaigns regarding the right to freedom of association and collective bargaining at the national level. What could be the reasons for the ministerial authorities not honouring their commitments?

Although it is true that the National Tripartite Committee on Labour Relations and Freedom of Association has been established, it meets without any clear objectives or time frames; we continue to be highly critical. Other matters of tripartite interest should be addressed and discussed and agreement reached on them in the above-mentioned body but in practice this does not happen. Here are two examples of this shortcoming. For 2023, the executive authority, at the behest of the Ministry of Labour, approved wages differentiated by region without having exhausted the procedure of the National Tripartite Committee, and the same things happened with the implementing regulations for the application of the Part-Time Work Convention, 1994 (No. 175). As we have reported on countless occasions, these cases end up undermining the workers, especially in urban and rural areas with major pockets of poverty and extreme poverty, with the associated implications. It should be recalled that this important body was established with the tripartite approval and support of the ILO, it being recognized by a Ministerial Decision, with the undertaking that it would be duly underpinned by a decree-law.

There is also the issue of the establishment of industry trade unions, which corresponds to long-standing observations of the Committee of Experts. These are another two examples of non-compliance. The road map does not give evidence of progress; on the contrary, there have been attacks on trade unions, trade unionists and in particular collective bargaining. Another example: regarding the administrative process for the approval of collective agreements, the criteria applied have been made more stringent to the point of undermining such agreements, even though the employers and workers have confirmed their wish to validate the agreements. The Ministry of Labour sent a note, dated 1 June 2023, reporting on the mechanism that governs the administrative processing of the approval of collective agreements in the public sector, even though everyone knows that these criteria are the ones which they have been applying for over two years.

This subject is constantly subject to questioning by the trade unions, on account of the adverse implications for the workers in general. Moreover, it violates concepts of the Constitution, which enshrines collective bargaining as a means for improving the minimum social rights of men and women workers. The Ministry of Labour as chief guarantor of labour standards has become the main obstacle to the positive development of the very processes of negotiation and the right to organize. So there are serious steps backwards, especially regarding freedom of association and collective bargaining, in total collusion with the employers.

On the contrary, there are other proposals for labour legislation which are regressive for the workers and ultimately for the country, where there has not been due consultation with the unions at the time they were being prepared. For example, reforms of the Penal Code have been proposed aimed at including provisions which penalize collective bargaining and criminalize trade union activity and administration.

On the other hand, the judiciary has prepared the proposal for the Code of Labour and Social Security Procedure, which even reveals major backward steps with regard to the current labour legislation. Also being processed and under discussion is a law which criminalizes social and trade union protests. We are in a situation of total defencelessness.

Lastly, it should also be noted that in a few days our country will be electing new national authorities, which will take up office in January 2024. The general socio-political environment is totally uncertain for the workers and the outlook is particularly grim for the Guatemalan trade union movement. We have serious doubts as to whether the new governing authorities will assume the responsibility for implementing the road map. Faced with this complex scenario, we continue to insist that there is an urgent need to decide on the immediate setting up of a commission of inquiry for Guatemala.

Employer member, Guatemala – Firstly, we would like to express our heartfelt condolences to the workers, and especially Mr Francisco Mendoza, Mr Julio Coj and Mr Luis López, regarding the death of Mr Carlos Mancilla, a recognized trade unionist, a personal friend and a fighter for the workers’ cause, who was frequently present at this Conference.

As mentioned by the Workers’ spokesperson, his decease is without any doubt an enormous loss for the international workers, for our comrades in Guatemala and for all of us who had the good fortune to share the tripartite forums with him, and to whom we owe the commitment to continue working for a country which has more justice and opportunities for all.

As I have done frequently, I would like to start by referring to the support and patience which the Conference Committee and the Office have shown to Guatemala in recent years. As chairperson of the National Tripartite Committee on Labour Relations and Freedom of Association, I would also like to thank the Government of my country and the workers for their participation in, and support for, the aforementioned Committee.

I would like to reiterate the importance of the road map launched in 2014 and the absolute commitment of the sector that I present to implementing it.

I would also reiterate the commitment of the employers’ sector to support all complaints made by the workers in the context of the road map, on the basis of the law, the rejection of any form of violence and our solidarity with the victims.

I do categorically reject the accusation levelled at the employers of promoting hatred and violence. These assertions appear to be unfounded. Not only are they arbitrary, they also do not correspond to the spirit of respect which should characterize tripartite relations.

Even though there certainly remains a lot to be done on the implementation of the road map, we cannot and should not fail to recognize the progress which has been made.

Firstly, the very institution of the National Tripartite Committee and the opportunity for social dialogue which it gives us. This is a forum of inestimable value which also calls for willpower and courage on the part of the parties to reach compromises, recognize challenges and demand results but also to recognize progress made. We can do more but we need the will to do so, to participate and to take advantage of the opportunity given us.

For example, we are inspired to see the work ethic of the subcommittees, with commitment, effort and openness to agreement which, alas, we have not been able to match within the National Tripartite Committee. I must also refer to the readiness of the government institutions to honour the commitments of the road map. These include the following.

In the Supreme Court and the Constitutional Court: the establishment of a Pluripersonal Court of Penal Resolution for offences of non-compliance in labour matters and the clear support of the Constitutional Court through participation in tripartite meetings and its openness to attending to the workers.

At the Ministry of Labour and Social Welfare: the reactivation of the Tripartite Advisory Board on Labour Inspection and the submission of a Bill to the National Congress institutionalizing the National Tripartite Committee.

At the Public Prosecutor’s Office: the establishment of a special prosecution section and a significant increase in the institutional budget for dealing with crimes against trade union leaders and members. In addition, the Ministry of the Interior has increased the budget for the provision of security for workers. The Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists has been strengthened through ongoing training on international labour standards and dissemination of Instruction No. 1-2015 of the Public Prosecutor’s Office concerning the handling of complaints of anti-union violence.

Note should also be taken of the openness and willingness of the Attorney-General to meet at least three times this year with the National Tripartite Committee, and the instructions to her team to hold as many meetings as requested by the workers to address certain cases.

As regards complaints of violence against trade union leaders and members: there is absolute consensus on condemning any form of violence. We reiterate our solidarity with, and unconditional support for, the victims and the workers in general; they define the contribution we can make.

Having said this, I think we should note that the first of the 98 cases referred to above dates from 2004, which gives an idea of the complexity of the investigations into events that occurred nearly 20 years ago. I repeat: no death can be justified. Justice must be sought and these events are categorically repudiated by us.

In these 98 cases, there have been 37 judgments handed down, of which 26 are convictions. As already mentioned, there are 46 cases in which the investigation process has been exhausted and closure measures have been adopted, but this in no way prevents the reopening of the cases concerned in the event of new evidence coming to light.

It also seems to me that, with such a sensitive subject as this, we cannot merely deal in absolute numbers accumulated; we must also analyse the trends. In recent years, the murder rate decreased from around 48 per 100,000 inhabitants to less than 20 per 100,000 inhabitants last year. In that situation, in the situation facing all Guatemalans, it should be noted that regarding the 98 cases reported since 2004, we can only express our regret and reiterate our absolute repudiation of any act of violence, and we also note that there have only been two cases involving deaths in the last two years.

Are these results acceptable? Of course not. We still have so much progress to make.

Every single life is important and we must all work together to protect the integrity of each individual and indicate our absolute rejection of any acts of intimidation. Here the workers have, and will continue to have, our solidarity and support.

My message today is that we should continue to work together in social dialogue but without clinging to a past from which we must move on, always demanding social justice. At the same time we must recognize the enormous challenges which we still face. We also urge you strongly to recognize and not deny the progress that we have made. I do not deny, I accept, that much remains to be done but we are on the right path.

We succeeded in signing the road map in 2014 and so I invite you to reflect.

Before 2014, did we have an established forum for social dialogue?

Before 2014, did we have a Special Prosecutor’s Office dealing with crimes against trade unionists?

Before 2014, did we have a special court dealing with non-compliance in labour matters in order to enforce reinstatement orders?

Before 2014, did we have the opening and exposure of the highest judicial institutions to address trade union concerns?

Before 2014, did we have three meetings in the last eight months with the Attorney-General and the offer to hold all meetings necessary with the trade unions to provide any explanations requested in each of the cases?

In a country where almost 90 per cent of murders go unpunished, can we say to these persons that we have not obtained justice but that they do not have a Special Prosecutor’s Office devoted to resolving these cases and that, having obtained 37 judgments in 98 cases, this does not signify some modest progress in the justice system?

Even though the judicial resolution and the conviction of the perpetrators is important beyond any doubt, should we not recognize that since 2004 there has been a significant reduction in acts of anti-union violence?

Clearly, we all want results but it is pointless, it is neither fair nor constructive to fail to recognize the progress that has been achieved. Where results exist, it is not about recognizing them only when they are the results we want. The right to demand results also requires a commitment to decisive, ongoing participation and the political will to do so.

We are perhaps moving very slowly but we are continuing to take steps. The Employer members will remain at the table fully willing to move forward and support all sectors on the path which we still have to take.

I will finish by referring to the responsibility that we owe to our sectors, to our country and to all Guatemalans. We are obliged – I repeat, obliged – to understand each other and seek better opportunities for further action.

Government administrations pass, and in January 2024 we will have a new Government, but the workers’ and employers’ sectors remain.

For my part and for the sector that I represent, I offer our full readiness to fulfil this responsibility with the sole request that we do not stop moving forward together with decisiveness and willpower to implement not only the road map but also the agreements that our country so badly needs. It is our responsibility and obligation to do so and we cannot stop working towards this end.

Government member, Sweden – I speak on behalf of the European Union (EU) and its Member States. The candidate countries Bosnia and Herzegovina, North Macedonia, Republic of Moldova, Montenegro, and the EFTA country Norway, Member of the European Economic Area, align themselves with this statement. The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights such as the right to organize and freedom of association. We actively promote the universal ratification and implementation of the fundamental international labour standards. We support the ILO in its indispensable role to develop, promote and supervise the application of ratified international labour standards and of fundamental Conventions in particular.

We wish to recall the commitment undertaken by Guatemala under the trade and sustainable development chapter of the EU-Central America Association Agreement to effectively implement in law and in practice the fundamental ILO Conventions. The EU and its Member States continue to follow the situation in Guatemala very closely. We reiterate our deep concern about the human rights situation, including labour rights, and note a persistent lack of progress on reforms. We fully echo the Committee of Experts’ deep concern about the allegations of a new case of murder and other acts of anti-union violence committed in 2022, the persistence of a high degree of impunity and weak protection measures. We welcome the Government’s intention to continue the implementation of the road map adopted in October 2013. However, we stress that intensified efforts are needed to fully implement the road map in consultation with the social partners and in accordance with the series of priority actions identified by the joint mission of the ILO, IOE and ITUC undertaken in September 2022. It is of the utmost importance that further efforts translate into tangible progress in the application of the Convention.

The EU and its Member States condemn the persistent and serious acts of general violence, the violence against trade union leaders and members, including murders and physical aggression, and the culture of impunity that prevails. We call on the Government to investigate all acts of violence against trade union leaders and members with the aim of determining responsibility and punishing both the perpetrators and the instigators of these acts, taking the victims’ trade union activities fully into consideration in the investigations.

In line with the Committee of Experts, we continue to note with concern difficulties in clearing up long-standing murder cases and other acts of anti-union violence. It is regrettable that the majority of the murders of trade unionists have not yet resulted in convictions and that limited information on identification and punishment of the instigators has been provided. We urge the Government to strengthen the prevention, protection and response mechanisms in respect of threats and attacks against trade union officials and activists. In the event of failure, this situation is likely to continue, if not to become worse.

Despite numerous calls from the Conference Committee, the Government has yet not introduced the necessary amendments to several sections of the Labour Code and Penal Code to secure the application of the Convention. We note with concern the continued challenges related to the process of trade union registration, criteria for engaging as a trade union leader, obstacles to the right to strike and limitations to the freedom of association in the public sector.

We again urge the Government to adopt, without delay, the reforms that were submitted by tripartite consensus to the Congress of the Republic and to make progress in the revision of the legislation relating to sectoral trade unions and the conditions for strike ballots.

The EU and its Member States will continue to follow and analyse the situation and remain committed to our close cooperation and partnership with Guatemala in the fulfilment of all its obligations under ILO Conventions, with a specific focus on fundamental Conventions such as this Convention.

The EU reaffirms its commitment to continue cooperating with Guatemala through the ongoing EU-financed technical assistance programme, which is implemented by the ILO. Close cooperation will continue with the ILO and the national tripartite constituents to achieve the objectives of this technical assistance programme.

Government member, Colombia, speaking on behalf of a significant majority of Latin American and Caribbean countries – We are grateful for the information that the Government of Guatemala has kindly submitted today to this Committee on the application of the Convention. We recall that the Guatemalan Government is required to submit information on this same Convention to the Governing Body at its October/November sessions for the three-year duration of the technical cooperation programme entitled “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”, for which funding was requested in accordance with the decision adopted in October/November 2020 (GB.340/INS/10).

We acknowledge the Guatemalan Government’s call, made during the presentation of the first and second annual reports on the implementation of this programme, to other donors to make financial and technical contributions to strengthen national resources and efforts for the implementation of the technical cooperation programme. The actions referred to today before this Committee have been financed with the Guatemalan Government’s own funds and with funds allocated by the Office from other programmes.

A significant majority of Latin American and Caribbean countries recognize the commitment of the Guatemalan constituents to strengthen the processes of negotiating and reaching agreements within the National Tripartite Committee and its subcommittees, prioritizing social dialogue and respect for international labour standards.

We encourage the authorities of the three branches of the State of Guatemala to continue their efforts, commitments and progress in relation to the road map, to consolidate social dialogue, to continue the work carried out so far by the National Tripartite Committee and to ensure the observance of the Convention.

A significant majority of countries in Latin America and the Caribbean note that the Government of Guatemala is again being examined in several areas of this Organization’s standards supervisory system. The simultaneous application of mechanisms to deal with the same allegations concerning one country could weaken the functioning of the ILO supervisory bodies.

Employer member, Colombia – First of all, the Employers’ group strongly rejects all acts of anti-union violence. We deeply regret the deaths reported in the cases under discussion. In this regard, it is important to note that, starting in 2020, it was agreed that Guatemala would have a technical assistance programme to support follow-up on the road map.

Indeed, this technical assistance has borne fruit, and although it is always desirable to have better results and more resources, it is undoubtedly clear that there have been achievements in terms of investigation and punishment in the cases of murders of trade unionists. These achievements have been translated into strategies for the prevention of further criminal conduct of an anti-union nature.

Secondly, the Committee of Experts refers to impunity with respect to resolution and convictions in the cases analysed in Guatemala. With regard to this issue, we consider that the Committee should not consider that justice only operates when convictions are secured; forms of justice also include dismissal, preclusion, closure of the investigation and acquittal, if this can be understood as the guarantee that citizens have of obtaining reasonable and timely responses from independent authorities in relation to allegations made.

Hence, we look favourably upon the improvements made regarding investigations, trials and arrest warrants by the Public Prosecutor’s Office and the judiciary. We stress that the Guatemalan judicial bodies are autonomous and independent and today have greater capacity and technical knowledge than in previous years. It is these bodies, and not the Government or the employers, which have carried out the relevant investigations, which have concluded that some cases correspond to other forms and dynamics of violence.

Thirdly, on social dialogue in Guatemala, with the support of the ILO, tripartite dialogue has been developed further. Tripartism has been consolidated through the holding of ongoing meetings of the National Tripartite Committee on Labour Relations and Freedom of Association, as well as in different departments of the Public Prosecutor’s Office. Representatives of trade unions and employers’ organizations participate in these forums on a continuing basis.

It should also be noted that the Government recently submitted to the legislature a standards reform Bill that had undergone consultation with the social partners in order to bring the legislation into line with international standards.

Accordingly, we consider that the Government cannot guarantee, at least not in such a short time, results that do not depend on the executive branch but rather on a democratic, autonomous and independent body such as the National Congress of Guatemala.

Lastly, we invite the Government, workers and employers to continue along the path of social dialogue and negotiation, which is, in the end, the path to reconciliation.

Worker member, Colombia – Anti-union violence in Guatemala has persisted over the years and, according to the latest reports, this situation has worsened significantly, as evidenced by the recent murder of comrade Mr Hugo Eduardo Gamero González, who served as disputes secretary of the workers’ union in a port enterprise, as stated in the report of the Committee of Experts in 2022.

This murder adds to the more than 100 cases of fellow Guatemalan trade unionists who have been victims of anti-union violations that have gone unpunished.

In its report, the Committee of Experts requested the Government to investigate, without delay, all acts of violence against trade union leaders in the exercise of their activities, as well as to provide effective protection to trade union leaders at risk.

However, despite the Government’s reports on the progress in the prosecutions of the murders of our comrades, on the significant increase in the budget of the Special Prosecutor’s Office dealing with these crimes and on the protection programme, the truth is that these measures have not been sufficient to guarantee the due exercise of the right to freedom of association.

In this regard, it is worth highlighting that the Committee of Experts recalled in its report on the principle of freedom of association in relation to this case that “trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected.”

We therefore urge the Guatemalan Government to comply with this mandate, guaranteeing the free exercise of the right to freedom of association and resolving via the competent authorities the murders, both long ago and more recent, of trade union leaders who have been victims of acts of violence, so that there is effective justice for their families and the Guatemalan trade union movement.

In this context, and in the interest of preventing any further acts of anti-union violence, we urge the Government to provide adequate protection to all trade union leaders and give fresh momentum to implementing the road map adopted in 2013.

Employer member, Honduras – We are once again surprised that this year Guatemala is once again being called for examination under the Convention, since, as is well known in this room, a technical assistance programme was established in 2020 for this country and the Governing Body requested follow-up to this technical assistance programme and an evaluation of the indicators in the road map.

Without prejudice to the above, we can state that: (1) we regret the widespread violence in Guatemala, as it causes suffering for all Guatemalans, but we have seen progress in the progressive and sustainable intervention of the Public Prosecutor’s Office for the investigation and punishment of the deaths that have been reported; (2) we have seen progress in the implementation of the road map thanks to social dialogue and tripartism, but it is important to point out again that all sectors must participate to ensure the progress and the success of the roadmap; and (3) we have seen progress in the discussions on legislative reform, which takes time and a lot of discussion, but we consider that it is on the right track and therefore we urge the sectors to maintain social dialogue to achieve the approval of this legislation with the support of the ILO.

We call on all sectors to continue with faith and hope, and with the support of the ILO, to make effective progress on the road map and sustain tripartite social dialogue in order to maintain social peace in Guatemala. All we ask of this Committee is to support the sectors in order to achieve the objectives of the road map, which received tripartite approval.

Worker member, Peru – We see in the case of Guatemala a very serious situation, which trade union leaders have been reporting for years without their country’s authorities finding an effective solution and which has now been reiterated to this Committee by members of the trade union delegation from that country.

Justice delayed is justice denied. The Government’s unwillingness to guarantee the safety and lives of trade unionists, whose human rights to life and to the free exercise of freedom of association are being violated, is a cause for concern. All the signs suggest that crimes and threats against the lives of trade unionists continue without timely action by the State through its institutions of protection. Attempts on the lives of trade union leaders in Guatemala, without effective action by the Government, are a serious violation of the Convention and of the Universal Declaration of Human Rights itself.

Impunity is a hard blow to the ranks of unionized workers, who begin to perceive that exercising the right to freedom of association will put their lives at permanent risk, and this affects the very performance of the trade union function to take action for the benefit of the working class. We also consider these facts to be serious because, despite the countless occasions on which the ILO supervisory bodies have denounced these crimes and the lack of timely action, their conclusions and recommendations have not been taken into account.

With elections due to take place in a few days in Guatemala and new authorities taking office, we urge the Committee to send an official communication announcing the visit of a commission of inquiry which the trade union delegation has called for and which we support.

Government member, Switzerland – Switzerland is concerned about the climate of violence and repression against trade unionists in Guatemala. The threats and acts of violence to which the representatives of workers’ organizations are subjected constitute serious violations of the fundamental rights recognized under the Convention. Switzerland condemns these acts and recalls that workers must be able to exercise their trade union rights without their physical or mental integrity being harmed. Switzerland has taken note of the increase in the budget allocated to the Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists. We wish to stress the importance of access to independent justice, free of any restrictions.

Switzerland also recalls that workers must be able to form associations freely, without this process being hindered. In this respect, we urge the Guatemalan Government to take the necessary measures to fully guarantee the right to freedom of association.

The Government of Switzerland takes note of the information provided by Guatemala, in particular the strengthening of prevention and protection measures against anti-union violence and the increase in investigations and judicial decisions on cases relating to the deaths of trade union representatives. We encourage the Government of Guatemala to continue and strengthen its efforts to guarantee the safety of trade unionists in the exercise of their rights. Switzerland expresses the hope that the priority actions identified by the joint mission of the ILO, IOE and ITUC will be implemented by the Government in order to ensure the application of the Convention in law and in practice.

Employer member, Costa Rica – On this occasion, we consider it important to support and highlight the appropriate steps that the Government of Guatemala, in the framework of social dialogue, has taken.

As we have previously indicated, we know that this tool has successful results leading to the resolution of labour, social and economic issues. Guatemala has managed to find practical and real solutions to the problems it faces, while following the suggestions of the ILO Committee of Experts and Governing Body.

We highlight the legislative actions that the Government of Guatemala has promoted throughout recent years, such as, first, the request of the National Tripartite Committee for the establishment of such a forum by law, which should be considered a significant achievement. Second, there has been follow-up to the recommendation of the joint ILO-IOE-ITUC mission. Third, the strengthening of this tripartite body through a national law, thereby making it a forum for dialogue that works to promote compliance with international commitments, guarantees its sustainability over time, and affords it legal certainty. This Tripartite Committee is, in turn, composed of three subcommittees that have made great progress in this area: the Subcommittee on the Implementation of the Road Map, the Subcommittee on Mediation and Dispute Settlement, and the Subcommittee on Legislation and Labour Policy. Fourth, the discussions being held on the legislative reform concerning branch trade unions and sectoral bargaining, in accordance with the tripartite agreements of March and August 2018, taking account of the provisions set out in the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This is the information the Government has been providing in line with the request made.

It is with these types of actions that the social partners, through social dialogue and with ILO technical assistance, hope to align national and international legislation, and strengthen the institutional framework of the National Tripartite Committee on Labour Relations and Freedom of Association.

We highlight the advances made in the legislative reform, as they are positive, provide legal certainty to all parties and have the backing of the sectors. We know that making changes to the legal system, particularly where this involves laws, is a slow process requiring significant dialogue, proposals, agreements and solutions for the greater good. It is nonetheless better to do it slowly and properly, since creating laws aimed only at seeking a quick and easy solution to extremely delicate problems creates the risk of developing standards that have no practical application.

We urge the Government of Guatemala to pursue all the actions it has been taking until now in good faith and with clear will, accompanied by one of the most important tools for making real sustainable progress: social dialogue.

Government member, Canada – Freedom of association, as understood and envisaged in the Convention, may only be effectively exercised in a climate free from all forms of violence, intimidation or threats.

It is incumbent on governments to ensure respect of this principle. However, for over 15 years, the Committee of Experts, the Governing Body and the Conference Committee have examined allegations of serious acts of violence against Guatemalan trade union leaders, including allegations of their murders.

While thanking the Government of Guatemala for the new information provided to the Committee, we nevertheless wish to recall that all acts of violence against leaders of trade unions and associations must be properly investigated and, where relevant, the perpetrators of these acts must be penalized, in order to bring an end to the climate of impunity in Guatemala and to ensure real protection of workers and their representatives.

Canada appreciates the results of the joint mission led by the ILO, IOE and ITUC, with a view to the follow-up to the road map adopted by the Government of Guatemala in 2013. Canada notes that this mission has given fresh momentum to the road map, including with regard to the labour law reform that the Committee of Experts has been recommending for over ten years.

While recognizing the efforts of the Guatemalan Government and the social partners over recent years, it is nonetheless clear that much work remains to be done, particularly to end impunity and violence against trade union leaders.

Canada requests the Government of Guatemala to prioritize and continue to work towards effective protection of all trade union leaders and workers in a situation of risk, in order to prevent all anti-union acts of violence, to work towards tangible progress concerning the revision of the legislation on sectoral trade unions and conditions to vote for a strike, and, lastly, to work on launching campaigns to raise awareness of the right to freedom of association, developed in consultation with the social partners.

Canada also calls for effective protection of trade union leaders and strongly encourages the Government of Guatemala to intensify its efforts to bring to justice the perpetrators of crimes against trade union leaders as soon as possible, and in accordance with the principles of the rule of law.

We strongly encourage the Government of Guatemala to continue to work closely with the ILO and to request its technical assistance when needed.

Worker member, Bolivarian Republic of Venezuela – We have received and noted the information from the Worker delegate of Guatemala on the observations presented by the whole autonomous group of workers of this country on the repeated failure to implement the road map and the tripartite agreement signed by the Government of Guatemala, and the employers’ and workers’ sectors, on Conventions Nos 87, 98 and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

In this regard, the workers’ delegation of the Bolivarian Socialist Workers’ Confederation (CBST) of the Bolivarian Republic of Venezuela would like to request that the ILO accelerate its actions to continue with the technical assistance and cooperation programme and make progress with the road map. It is important to mention that, despite the efforts made by the Office, since the tripartite agreement was signed, the events that led to its establishment have increased exponentially. There have been over 100 murders of trade union leaders which have not been resolved by the Guatemalan authorities. Threats to trade union leaders and certain members of the National Tripartite Committee have also risen. The workers of the Bolivarian Republic of Venezuela express their solidarity with the workers of Guatemala and request the ILO’s decisive action through a commission of inquiry to put an end to this serious situation.

Government member, United States of America – This is the Conference Committee’s second time discussing the Government of Guatemala’s compliance with the Convention since closure of the long-standing article 26 complaint at the November 2018 Governing Body. We thank the Government for providing additional information to this Committee in response to the Committee of Experts’ recent observations and last year’s discussion.

The Government reports on various measures it has taken to address long-standing issues and recommendations, particularly efforts to implement the 2013 road map, the March 2018 tripartite agreement, and the follow-up to the September 2022 tripartite joint mission to the country.

We note that the Government reports a significant increase in the budget allotted to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists, continued coordination with the Public Prosecutor’s Office to provide protective measures to trade unionists at risk, and the roll out of improved procedures for issuing union credentials. We welcome these measures as initial, partial steps.

At the same time, we remain deeply troubled by the lack of progress on key issues and recommendations. We note that the Committee of Experts expresses concern regarding the persistence in law and practice of serious violations of the Convention. The Committee of Experts regrets that, since 2005, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders and situations of impunity.

The Committee of Experts also notes lack of progress in legislative amendments needed to remove obstacles to workers’ right to strike, facilitate the establishment of sectoral trade unions, and allow non-Guatemalan workers to be elected trade union leaders, among others.

We call on the Government to fully implement all outstanding recommendations from the various ILO supervisory bodies. To that end, we urge immediate and effective action to: improve investigative processes and increase prosecutions of those responsible for acts of violence and murder against trade unionists; recognize threats, intimidation, and harassment against trade unionists as acts of violence; create a safe, enabling environment that allows all workers to freely exercise their rights, including strengthening of mechanisms to protect workers’ rights; adopt legislation to bring its laws in line with international labour standards on freedom of association and the right to collective bargaining, including by institutionalizing the National Tripartite Committee, and to give effect to the decision on the right to strike reached by tripartite consensus; continue to improve the system for registering trade unions and collective bargaining agreements; and ensure that remedies following anti-union dismissals or retaliation are enforced without delay.

This will require the Government to provide the labour inspectorate with additional resources to effectively operate in all regions of the country, particularly in the agriculture and maquila sectors, where labour law violations related to freedom of association and the right to collective bargaining persist.

The United States of America remains deeply committed to working with the Government to advance internationally recognized workers’ rights in Guatemala, including through the joint Department of Labor and the Ministry of Labour and Social Welfare (MTPS) work plan, as well as through Department of Labor funded projects to help improve labour law enforcement. We also urge the Government to continue working in close cooperation with the ILO, social partners, and other relevant partners.

Employer member, Plurinational State of Bolivia – Since 2000, this Committee has been repeatedly discussing the case of Guatemala for failure to implement the Convention. In such circumstances, it goes without saying that it is totally unacceptable that such murders can occur. Of course, those responsible for these criminal acts must be penalized with the full force of the law.

However, it is also clear that such a sensitive situation must lead to a comprehensive policy to prevent any form of crime that not only involves establishing the number of convictions brought but also addressing the origins of the problem by determining the root causes of these acts. In this regard, there are indicators showing that Guatemala has made significant progress in the adoption of measures aimed at affording greater protection to trade union leaders. For example, specialized bodies are in place for the protection of trade union leaders, not only at the level of the prosecution service for investigative purposes, but also for prevention and protection through the Ministry of the Interior. Such measures are not common in other countries but we understand that they were developed in Guatemala precisely to respond to the need to advance in the fight against criminal acts against union leaders.

We must be aware that, although it would be ideal, there is no magic formula to end crime in general from one day to the next. It is rather the result of a process that, for the most part, spans a long period of time in order to raise the awareness of the whole population.

I am sure that we all want Guatemala to achieve all the objectives that have been set in this regard. We must therefore encourage the Guatemalan authorities and all those involved to continue to make progress in the fight against all the criminal acts that gave rise to the repeated observations on the application of the Convention.

Worker member, Spain – I am also speaking on behalf of the Netherlands Trade Union Confederation and the Trades Union Congress of the United Kingdom.

Guatemala, regrettably, has become a recurrent case before this Committee in recent decades. As all parties have mentioned here, the murder of trade unionists represents the peak of an anti-union sentiment in Guatemala that is rooted in the absence of freedom of association. As set out in the report of the Committee of Experts, in addition to violence and high levels of impunity, the violation of freedom of association in Guatemala takes many forms, and I will focus on just one: the lack of compliance with reinstatement orders.

Last year’s joint mission of the ILO, IOE and ITUC confirmed the existence of a combination of legal, institutional and practical factors that hinder the proper functioning of the justice system in respect of anti-union discrimination in general and the enforcement of reinstatement orders in particular.

After discussing the Guatemala case last year, the Committee of Experts was emphatic in its response to the verified anti-union situation in the country, not only deploring and regretting the violence and impunity, but also requesting the Government of Guatemala to adopt measures to “ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay”. Nevertheless, the situation in Guatemala has not improved, and there are even workers who have yet to be reinstated in their jobs almost five years after the order was issued. The failure to comply with judicial reinstatement orders is a practice seen in both the private and public sectors, particularly in local government.

I wish to recall that reinstatement forms part of the road map submitted by the Government of Guatemala following consultation with the social partners under the auspices of the ILO.

Specifically, point 7 of the road map states that “it is important and urgent that the rulings of the labour courts are observed and executed”, and the steps contained in the road map include verification of compliance with court rulings by the Reinstatement Verification Unit, with a deadline of 60 days. Those 60 days have passed; in reality, approximately 4,000 days have passed.

Trade unionists in Guatemala, who live with violence and impunity on a daily basis, have demonstrated admirable commitment to seeking solutions to ensure compliance with the Convention. Regrettably, however, the Guatemalan Government’s lack of commitment to complying with and executing reinstatement orders is clear.

We therefore ask the Committee to urge the Government of Guatemala, in the strongest terms, to comply with the provisions of the Convention.

Lastly, I would like to recall that the last time we had the opportunity to talk to our friend and colleague Mr Carlos Mancilla, he told us about the threats made against him and his family. Let us honour his memory and live by his example.

Government member, Dominican Republic – We welcome the Government’s efforts to comply with the Convention as described today by the representative of the Public Prosecutor’s Office, and we urge it to continue to redouble its efforts until it achieves full implementation of the Convention.

Worker member, Republic of Korea – Guatemala and the Republic of Korea have celebrated 60 years of diplomatic relations last year. Guatemala is the largest market for Korean goods in Central America and the textile industry accounts for around 80 per cent of South Korea’s investment in Guatemala. Around 150 textile and garment factories are owned by Koreans. But it is precisely this sector that has seen some of the most serious violations against workers and trade unionists. In 2015, the Korean Federation of Trade Unions (KCTU) and the Korean human rights NGOs jointly conducted field research on human rights and trade union rights violations in Guatemala. At that time, numerous violations were reported including non-payment of wages or paying below the minimum wage, non-payment of social security contributions after deducting from workers, being forced to work for long hours and poor sanitary conditions. In some cases, owners have closed down their factories and reopened under different names and have carried out massive dismissals as a means of evading their legal responsibilities to their workers. However, as seen in the Committee of Experts’ report, these violations of law and infringements of workers’ rights are really persistent until today, including in Korean-owned garment factories. In April of this year, when 300 workers in a Korean-owned factory tried to organize a union, the management began an anti-union campaign and witch-hunt to find the workers who spoke up about their issue to form a union. In another factory, where 40 union members and leaders were fired in 2013 but still not reinstated, the management refused to sign a collective bargaining agreement despite an arbitration court ruling ordering the company to finalize or implement the agreement. Another example is when the workers formed a new union in 2022, and the company refused to grant union leave even though it is guaranteed under the law. The result is that, as it has been extensively reported by the Committee of Experts, the unionization rate in the sector is below 1 per cent and only one collective agreement covering the maquila sector has been known in recent years. The Government must, without delay, fulfil its commitment to the International Labour Organization and cease all obstacles to the exercise of trade union rights and collective bargaining in the maquila sector and to intensify initiatives for the effective promotion of these rights.

Employer member, Panama – As stated by the Minister of the Republic of Guatemala, we have been addressing this matter for some time, and it is therefore a follow-up case in which significant progress has been made that we must acknowledge. In that regard, the Government has clearly expressed its regret at the deaths caused by widespread violence in the country. That widespread violence has not only affected trade unionists but also employers and the general population.

In the midst of that situation, we have witnessed continuing and sustained progress in the investigation of reported cases, as described by the Public Prosecutor’s Office. As a result of those investigations, the Public Prosecutor’s Office handed down 25 judgments in 2020, 28 in 2021 and 37 between 2022 and February 2023. It is important to note that Guatemala is a State based on the rule of law where all persons are subject to the Constitution and the law. The Public Prosecutor’s Office is therefore free to investigate all cases in the country.

Similarly, judicial proceedings have taken place according to the principle of due process, with all parties enjoying evidentiary and adversarial freedom and equality. All rulings have been based on the principles of judicial independence, meaning that they have been handed down by a competent court, based on evidence and the law. We are sure that the Committee of Experts does not wish the executive to influence cases under investigation by the Public Prosecutor’s Office, nor the judiciary to render judgments in favour or against. That would violate the principle of the separation of the powers, which is a fundamental part of the rule of law and life in society.

Through the presence here of representatives of the Public Prosecutor’s Office, the Supreme Court and the Constitutional Court, the Government has demonstrated that it has made significant advances, and so this is a case of progress which should be reflected in the conclusions.

Worker member, Botswana – I speak on behalf of the workers of Botswana and the Commonwealth Trade Union Group aligns to this statement. According to the ITUC Global Rights Index, the climate of violence against trade unionists has earned Guatemala the infamous distinction of being the most dangerous country in the world for trade unionists. The repercussions of Guatemala’s climate of violence against trade unionists extend far beyond its borders. Indeed, the world is watching, and the international community is well aware of the atrocities taking place in Guatemala. Even in Botswana, a country situated thousands of kilometres away, the plight of Guatemalan trade unionists has not gone unnoticed. The news of violence, intimidation, and the denial of basic workers’ rights reverberates throughout the global community, reminding us of the urgency to address this pressing issue. It is a climate where, expressing dissent, advocating for better conditions of work, and fighting for the rights of workers can lead to harassment, threats, and often death.

Furthermore, we must highlight Guatemala’s reiterated violations of the Convention. Every year we hear of serious violations indicated by the Committee of Experts and the Committee. By targeting trade unionists and subjecting them to violence, Guatemala flagrantly disregards the principles enshrined in the Convention. It is not only a breach of its obligations under international law but also a betrayal of the workers who strive for a fair and just society. We call upon the Guatemalan Government to take immediate and effective measures to protect trade unionists, to investigate and prosecute those who are responsible for violence and intimidation, and to create an environment where workers’ rights can be exercised without fear. Finally, the Government must fulfil its commitment to fully implement the ILO road map by introducing safeguards and mechanisms that protect the rights of workers, promote dialogue, and foster a culture of respect for trade unions.

Worker member, United States of America – Once again, this Committee is discussing Guatemala’s ongoing and egregious failure to comply with the Convention. Despite decades of engagement by the ILO’s supervisory mechanisms, technical assistance projects and bilateral engagement by several Member States, Guatemalans continue to place their lives and livelihoods at risk for supporting trade unions. In August 2022, 45-year-old Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), was assassinated in a targeted shooting. As has been noted, he is only the latest of over 100 trade unionists to have been murdered since 2005. Beyond the issue of violence, the Government of Guatemala has still not adopted the legislative reforms identified by the Committee of Experts to address barriers to the formation of sectoral trade unions and to guarantee the right of public sector workers to strike.

In addition, anti-union dismissals in the public and private sector remain a serious problem. In the rare cases where judicial orders for re-instatement are retained, they are routinely ignored by employers without consequence. We welcome the renewed focus on completing the established road map that came out of the 2022 ILO–IOE–ITUC joint mission. However, we also caution that over the past 20 years we have seen successive Guatemalan governments commit to a number of road maps and action plans that ultimately went unfulfilled. Therefore, the onus must squarely be on the Government to demonstrate why this time it will be different. In conclusion, we urge this Committee to adopt strong conclusions and recommendations requiring the Government to demonstrate tangible progress and guaranteeing workers the right to freedom of association in Guatemala.

Observer, Public Services International (PSI) – I am speaking on behalf of PSI and the seven Guatemalan public service trade union organizations affiliated to PSI. The case of Guatemala is, as noted by other speakers, a recurrent case in this Committee and has prompted discussion of serious violations of freedom and human rights. We recall that those violations have not been duly addressed or resolved by the various governments of Guatemala in recent years.

On the contrary, since the International Commission against Impunity in Guatemala was expelled from the country on 3 December 2019, there has been a regression, and it has been an even greater uphill struggle for the working class and the Guatemalan people in general. Extreme poverty and migration are exacerbated by persecution of independent media that report on corruption and the reality on the ground, and against the few judges and prosecutors who have dared to hand down sentences against persons who sow terror and believe themselves to be the masters of the country.

In recent years all the leaders of the organizations affiliated to PSI have reported threats, harassment, dismissals, the arbitrary cancellation of collective agreements, media campaigns against them and – when all that failed to work – fabricated criminal proceedings intended to dismantle their organizations and intimidate workers who fight for their rights and report corruption.

The various governments have never complied, and have never intended to comply, with the road map given to them by the ILO in order to disband the Commission of Inquiry. Although at the time we celebrated the Organization’s boldness in seeking alternative mechanisms to facilitate compliance with ILO Conventions, today we regret the wasted time and, above all, having trusted social partners who played us for fools.

In our view, that road map is dead. Let us give it a proper burial at this session, trusting that at the upcoming meetings of the Governing Body, the Commission of Inquiry may be reactivated in order to investigate the serious violations of freedom of association and human rights occurring in Guatemala.

Government representatives, we cannot be mere observers when it comes to the most precious legal asset there is – life – and we must ensure freedom of association and, obviously, the decent work that is guaranteed and supported by the ILO.

Government representative – Taking the floor again, I wish to say that I have listened with attention and interest to the statements made by the representatives of the Governments, Employers and Workers. I am grateful for the comments which recognize the progress made by the Government. I wish to emphasize that we understand your concerns, we deeply regret the deaths of the trade union leaders and members, and we agree on the importance of ensuring respect for trade union rights in law and in practice.

Hence we have provided and maintained a proactive tripartite social dialogue. As a member who shares responsibility for implementation of the road map and taking account of the comments of the Committee of Experts relating to the Convention, we have been firm and constant in intensifying our efforts to act with determination in the actions that enable progress to be made regarding observance of the Convention, in particular concerning trade union rights and civil liberties, legislative issues and the application of the Convention in practice.

Aware of the fact that we are still facing challenges to conclude the actions that are still pending relating to the road map for the Convention, we trust that these will be accomplished, and to that end it will be essential to continue building on the basis of dialogue. We also trust that the state institutions, in accordance with the legislation, will continue with actions that enable the ongoing achievement of the tangible results required, within the time frames indicated by the joint mission and set out in document GB.346/INS/10 concerning identified priority actions for the time ahead, always subject to the provisions of law.

Achieving these is made possible by support from the social partners and from the ILO, to which we reiterate the request for technical assistance under the technical cooperation programme entitled “Strengthening the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”. This would enable a successful conclusion to the requests adopted by the Governing Body in November 2022.

May I remind my fellow constituents that we are respecting the points defined by the joint mission during its visit to our country in September 2022, and also its time frame for the whole of the current year, as long as technical assistance is forthcoming.

The Government has focused its technical and financial efforts on areas related to: (1) entering trade unions in the public registry of trade unions, which is done in strict accordance with the law and as indicated by the Committee of Experts in its observations. An ongoing dialogue has been maintained with the sectors in the context of the Subcommittee on the Implementation of the Road Map, which forms part of the National Tripartite Committee. It should be noted that the Ministry of Labour has maintained confidentiality with regard to persons who are union members, in order to prevent the risk of inclusion of the unions in any list indicating their union activity; and (2) strengthening the Public Prosecutor’s Office with training on Instruction No. 1-2015 throughout Guatemala in order to raise prosecutors’ awareness of its objectives, and also processing complaints received in the provinces in order to launch initial investigations and respond to the situation on the ground with the criminal prosecution process, based on the presence of branches of the Public Prosecutor’s Office throughout the country.

We recognize and reaffirm that there is a need to focus tripartite efforts on a national approach with a strategic path in the medium and long term, going beyond the short term, as has been discussed in the ILO supervisory bodies, to enable sustainable results to be achieved in line with the situation in the country, bearing in mind that the processes of generating confidence and the results thereof may take more time than we would like. However, we reiterate our commitment to continuing our efforts to face the challenges ahead of us, placing the focus on the tripartite approach, respecting the role of each constituent, and reiterating that the Government will continue to intensify its efforts until its commitments have been fulfilled.

Guatemala is making efforts to maintain constructive relations with the social partners and to keep the joint mission informed through meetings and written information on the progress and implementation of our immediate and ongoing actions. This is to ensure compliance and to give evidence of our dedication and commitment with regard to the Convention, on which the constant progress has been indicated to the National Tripartite Committee, pointing out that although we are moving forward at the speed dictated by the legislation and the national situation, we are moving and we are on the right track.

Whether or not there is agreement with the progress demonstrated and even though there are value judgements from each sector on the progress shown, we must consider the importance of recognition of the constructive role played by the National Tripartite Committee, which in itself is an achievement, with the support of the International Organisation of Employers, the International Trade Union Confederation and the ILO, in all these processes.

We underline the need to continue building confidence to consolidate genuine social dialogue in our country accompanied by constant demonstrations of political will, taking account of the observations of the Committee of Experts on the Convention, as well as evaluation of the road map through the key indicators and the points referred to by the joint mission adopted by the Governing Body at its 346th Session (November 2022). Information was given to the ILO Governing Body and this will continue under the technical cooperation and assistance programme, a measure adopted at the 340th Session of the Governing Body (November 2020).

I reiterate emphatically that Guatemala is respectful of labour rights, and underline that the utmost efforts are being made to meet the stated international obligations. Guatemala focuses on ensuring that challenging, innovative proposals and consensus are achieved to offer solutions to the needs and concerns of the Guatemalan people in the world of work.

Beyond any shadow of doubt, we must recognize the importance of continuing with social dialogue and show humility in asking for help where necessary, as we have been doing. In this regard, we reiterate our firm hope that those countries that see fit can join us and make a financial contribution to the technical cooperation and assistance programme adopted since November 2020, and that thanks to the EU funds, granted as from September 2022, the existing and ongoing efforts made by the Government will be assisted.

In this context, may I once again reiterate the request for technical assistance made by the Government after 7 March 2023, in relation to the points indicated in the legislative reforms which have been referred to so much here, and specifically with regard to strengthening the National Tripartite Committee, on which we are still awaiting a favourable response.

All that remains for me to do is to encourage my fellow constituents to resolve the issues concerning labour relations and freedom of association, to continue developing high-level dialogue forums in this context, and to encouraging the countries making interventions in this esteemed forum to support us by continuing to engage in constructive dialogue combined with the results that we continue to demonstrate to the ILO Governing Body in the context of the technical cooperation programme in relation to which the actions indicated by the joint mission are carried out.

Before concluding, with the aim of focusing and centring the discussion, Guatemala requests that the Committee’s conclusions make an exclusive reference to the matters relating to Convention No. 87 with respect to our country and that they do not refer to different matters mentioned in this session by the Worker members.

Lastly, reiterating that Guatemala has demonstrated and will continue to demonstrate achievements with dedication, responsibility and effort to ensure fulfilment of the commitments made vis-à-vis the ILO, focusing our efforts, willpower and dedication to continue a mature dialogue, honouring the memory, dedication and laudable work of Carlos Mancilla, who was a driving force behind the road map, a chairperson of the National Tripartite Committee, and a firm believer in dialogue and tripartism.

Employer members – It is undeniable that we are dealing with a process of improvement which has been demonstrated throughout the various interventions and the reports provided by the Government. We are very grateful for the Government’s detailed description of the actions which it has taken, in particular its interest in continuing with this technical assistance, following the road map and maintaining effective tripartite dialogue. This is the true way towards improving any situation and condition that arises – continuing to act constructively, strengthening dialogue, and making use of the technical cooperation and assistance referred to, not to put forward punitive proposals which, frankly, will not achieve anything. There have been one or two proposals to take more drastic measures – a commission of inquiry –, but the question is: for what purpose? We are, precisely, in the middle of a proposed solution to the issues which have arisen. The task of a commission of inquiry, as we all know, is to investigate the facts and propose solutions, which is what has been proposed: we are in the process, we are on the way.

I would ask you to consider this proposal which is seems the Government has put forward to continue constructively on the path we are on. Of course it is a source of concern that there are still situations involving threats and widespread violence. Rapid and effective action is needed to eliminate this and strengthen investigations and the resolution of issues which are pending, in order to generate protection for trade union leaders and members. On no account can we accept conditions that generate the kind of circumstances which have been described and reported by the Government itself – but I insist that we are on the way. Legislative changes need to be speeded up. We understand that this is a process which takes time, in all countries of the world. If only the Government could impinge on the autonomy of the legislature and get it to give priority to this subject! We also think that greater visibility should be given to the proposed awareness-raising campaign on freedom of association to which the Government has committed. It should be ensured that there is no stigmatization of any of the components of the collective bargaining equation, namely the unions, their leaders and the employers. This condition must be clear. Fresh efforts will be required. I would like to insist on one point: in its statement the EU, in referring to the observance of the Convention, once again raised the issue of the right to strike. We the employers would like to reiterate our position: that the Convention does not refer to the right to strike, we do not accept these matters being raised in the discussions or in the conclusions when we are speaking about the Convention because each country adopts its own regulatory provisions in this regard.

That is all from us. We hope that the conclusions will be constructive and will enable us to continue making progress in this process of improvement which, it is clear, is not as rapid or prompt as we would hope, but it is clear that we are moving ahead and are in a better position than we were yesterday.

Worker members – The reaction of the Government to the interventions in this room speaks for itself. The steps taken by the Government are far too little and too late. As a result, workers in Guatemala continue to be denied, in law and in practice, their right to freedom of association. No one can deny that Guatemala remains among the most dangerous countries in which to be a trade unionist, with many having paid with their lives merely for carrying out lawful union activity. Arrests and prosecutions for these murders remain a rarity. Anti-union dismissals continue with impunity and the labour justice system has been incapable of providing a remedy. And the labour law in many respects restricts the right of workers and unions to carry out their activities, including to bargain collectively or to strike.

Repeated governments have made promises and received a lot of support and technical assistance to fix these problems but without results. It has now been 11 years since the submission of an article 26 complaint concerning systemic violations of Conventions Nos 87 and 98 by Guatemala at the 2012 International Labour Conference and nearly 10 years since the adoption of the Memorandum of Understanding and the road map, which were adopted by the Governing Body in October 2013. Sadly, as the Committee of Experts’ report indicates, little has changed. The Government has failed to implement the road map, leaving the great majority of issues unaddressed. The subset of priority issues identified last September remains incomplete. There is no evidence of systemic and sustainable reforms in law or labour administration. We have heard from the Government that it is going to archive some 46 cases because those cases are old. This is deeply concerning. We urge the Government to continue to investigate these cases so as to ensure justice for the victims and for their families.

The Worker members call on the Government with, of course, the support and commitment of the workers’ and employers’ representatives at all levels: to fully implement the road map adopted on 17 October 2013, in consultation with the social partners, without any further delay; to investigate without delay all acts and threats of violence against trade union leaders and members, including Hugo Eduardo Gamero González, with a view to identifying and understanding the root causes of violence, taking into account their trade union activities as a motive, determining responsibilities, and punishing the perpetrators, including the instigators and perpetrators; to provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and to ensure that protected individuals do not personally have to bear any costs arising from those schemes; to adopt the agreed amendments to eliminate the various legislative obstacles to the full exercise of freedom of association; to develop legislation to allow for the formation of trade unions at the sectoral level; to approve draft law 5508 to provide a legal foundation to the National Tripartite Committee on freedom of association; and, in consultation with the social partners, to ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; to ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay, including implementing any recommendations from the comprehensive technical diagnosis of the challenges in terms of reinstatement prepared by the ILO; to increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions or their leaders or of collective agreements.

We call on the Government to accept a high-level tripartite mission. Given the seriousness and persistence of the violations and continued imminent danger to life faced by trade unionists and the failure of the Government to take any concrete and meaningful measures to urgently address the situation, the Worker members request a special paragraph for this case.

Conclusions of the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted with deep concern the persistence of allegations of murders of trade unionists and other acts of anti-union violence as well as the general situation of impunity that prevails in the country.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to:

- take immediate measures to address the general situation of violence and intimidation, put an end to acts of violence and threat thereof against trade union leaders and members;

- fully implement the road map adopted on 17 October 2013 without further delay as well as any recommendations prepared by the ILO;

- investigate without delay all acts and threats of violence against trade union leaders and members to determine responsibilities, punish the perpetrators and identify the root causes of violence;

- provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes;

- take measures to adopt without delay the agreed amendments to eliminate legislative obstacles to the full exercise of freedom of association and develop legislation to allow for the formation of trade unions at the sectoral level; ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; and

- increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements.

Government representative (Minister of Labour and Social Welfare) – Guatemala carefully notes the Committee’s conclusions and the importance of continuing to work in a coordinated manner, adopting effective measures for the full application of the principles of freedom of association and the right to organize, with the firm hope that we will continue building through social dialogue with the constituents of the National Tripartite Committee on Labour Relations and Freedom of Association.

I would like to point out that it is the Public Prosecutor’s Office which has the obligation to prosecute crimes against life with respect to all Guatemalan citizens, without any discrimination whatsoever. Accordingly, it will continue to support and participate in the National Tripartite Committee and work with the trade unions, in order to achieve an objective resolution of the acts and threats of violence against trade union leaders and members, as it has been doing with its open-door approach.

As previously stated, I recognize that perhaps we are not moving as quickly as everyone would like but the undeniable reality is that we are moving and we are on the right path. We therefore trust that at some point in the future the progress made by the Government of Guatemala and the fact that we have been constant in demonstrating our commitment to the application of Convention No. 87 will be recognized. Beyond any doubt, we will continue building trust and intensifying the efforts needed to achieve the full application of the Convention, relying here on ILO support in the form of technical assistance and cooperation.