Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

The Government supplied the following information:

On 25 April and 14 May 2001 the Congress of the Republic approved two legislative Decrees which implement the requests of the Committee of Experts concerning the application of Convention No. 87.

The Office prepared the following summary concerning these Decrees:

-- ending of the supervision of trade union activities by the executive (former section 211 of the Code);

-- ending the requirement that members of the trade union executive committee have no criminal record and are able to read and write (former section 220 and 223);

-- ending the requirement of obtaining a two-thirds majority of the members of a trade union to be able to call a strike (former section 222); now the requirement is for more than half of the quorum of the assembly;

-- ending the requirement of obtaining a two-thirds majority of the worker of the enterprise for a strike to be legal (former section 241); the requirement is now to obtain more than half of the workers of the enterprise;

-- repealing the prohibition on strikes or suspension of work by agricultural workers during harvests (former section 243a) and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (section 243). The President of the Republic can now only suspend a strike when it seriously affects essential public services and activities (new final paragraph of section 243);

-- repealing the provision requiring detention and judgement of those who publicly incite an illegal strike or work stoppage (former section 257);

-- ending the obligation for the courts to call on the national police to ensure continuity of work in the event of an unlawful strike (former section 255); henceforth, judges "could" order and carry out preventive measures in order to guarantee the continuity of activities and the right to work of persons who so wish;

-- facilitating and strengthening the procedures and penalties for violation of labour standards (intervention of the labour inspection in the process; setting of fines on a sliding scale based on minimum wage scales and the seriousness of the violation).

In addition, before the Conference Committee, a Government representative, the Minister of Labour and Social Security, stated that his Government was present before the Committee today because of its conviction that it was necessary to respect the ILO supervisory bodies and because of the Government's desire to improve its labour laws and their application. In this regard, he noted that the Guatemalan Labour Code had been in force since 1947. As a result of the overthrow of the Second Revolutionary Government in 1954, the Code's enforcement had been interrupted and the rights of workers had begun to be violated. Indeed, enforcement continued to be uncertain. In this context, the Government agreed with the ILO's position and stood ready to correct all incompatibilities with the international standards which Guatemala had voluntarily accepted, including Convention No. 87, ratified in 1952.

The speaker was happy to inform the Committee that his Government had fulfilled most of the commitments that it had undertaken during the 88th Session of the International Labour Conference in June 2000. He added that he would provide a detailed explanation to the Committee in this regard, but that he considered that it would have been desirable to wait for the Committee of Experts to analyse the legal amendments recently adopted as well as to await the report of the direct contacts mission that had visited the country in April 2001.

He noted that two amendments to the Labour Code had been adopted in order to bring the Code into conformity with Convention No. 87. The first was approved by the Legislative Congress on 25 April and the second was approved on 14 May. Both amendments would enter into force on 1 July 2001. These amendments took the ILO's observations into account, repealing and amending certain sections of the law. He assured the Committee that Guatemala's commitments had been fulfilled, with the exception of the issue of the right to strike for workers in the public sector, a pending question which would subsequently be considered in a comprehensive reform of the Civil Service Law, which established the labour rights of workers of the executive branch.

He also wished to provide clarifications with regard to the tripartite consultations conducted in the process of amending the Labour Code. He wished to inform the Committee that these consultations had been satisfactorily completed in that the Congress had permitted employers and workers to make a joint proposal on the amendments which they wished to introduce in the law and that the proposal agreed to by the workers and employers had been approved by Congress in its entirety. The Congress thereby demonstrated its respect for democracy and tripartism. Nevertheless, the agreement reached by workers and employers was not sufficient, as these groups had achieved agreement on only six of the 13 points raised by the ILO. As a result, the amendment was not satisfactory to either the Government or the ILO, as the ILO Office itself had indicated. It was therefore necessary to carry out a second amendment without the participation of workers and employers, as these two groups had publicly stated that they would not be able to reach a consensus on the subject matter. The legislative branch therefore took over responsibility for this issue and it adopted the second amendment in accordance with the recommendations of the ILO.

The speaker pointed out that the second amendment also included other changes in addition to those recommended by the ILO and to those deriving from the peace agreements. These additional changes provided better protection of workers' rights and improved the ability of the Ministry of Labour in preventing the violation of workers' rights and in ensuring that these rights could not be violated with impunity. In this manner, the Congress was carrying out its mandate to legislate for the benefit of the people.

In respect of this case, the speaker noted that his Government considered it necessary to carry out a broader revision of the labour laws, to regulate and update the recognized rights of workers and to bring the legislation into conformity with the ILO Conventions and the peace agreements. To that end, a draft code of labour procedure had been prepared, which sought to ensure the rapid processing of labour cases and the effective enforcement of sentences imposed in such cases, since otherwise workers' rights would continue to be violated with impunity. Copies of this new draft had been sent to workers' and employers' organizations, the Supreme Court and specialized bodies such as the National Lawyers' Association, the United Nations Mission in Guatemala (MINUGUA) and the ILO Office, with the aim of receiving their comments, corrections and suggestions.

In addition, on 8 June 2001, a meeting had been held with trade unions and organizations representing farm workers, disabled workers and women workers with a view to reviewing the substance of the Labour Code to incorporate the opinions of these groups. Employers' organizations had also been invited to attend.

With regard to the Committee of Experts' comments on the exercise of freedom of association rights and the murders of various trade union leaders, the speaker informed the Committee that, when the direct contacts mission arrived in Guatemala in April 2001, his Government had provided the team with the necessary facilities and cooperation to enable it to carry out its tasks without hindrance. This demonstrated the Government's willingness to cooperate with the ILO and its supervisory bodies because, even prior to receiving the official notice from the ILO Office regarding the sending of the direct contacts mission, the Government had taken the initiative of inviting the mission and asking it to address other issues in addition to the specific matters with which it had been charged. The Government took this action so that it could take advantage of the experience of the team members and their presence in Guatemala, and ascertain the opinion of the ILO regarding the labour law amendments which were then pending in Congress.

The direct contacts mission would submit its report to the Committee on Freedom of Association in November. However, he wished to inform the Committee that a special inspectorate under the Public Ministry had begun operations on Friday, 8 June, and that this special inspectorate would investigate crimes committed against trade union officials or members as a result of their trade union activities. This special inspectorate had been established in response to the recommendation made by member of the direct contacts mission. In other words, prior to receiving the mission's report, his Government was already taking measures to punish crimes committed against trade union members.

In conclusion, he was pleased to provide the Committee with this information so that it could highlight and note as a positive element that Guatemala had fulfilled its commitment to amend the Labour Code and that the direct contacts mission had been carried out with the Government's full cooperation, which indicated Guatemala's respect for the ILO, its procedures, and the work of its supervisory bodies. He also informed the Committee that, for the first time in the history of Guatemala, an individual accused of having murdered a trade union official had been sentenced to 25 years in prison. He also informed the Committee that, with regard to the case of the SITRABI trade union and the Bandegua company, criminal actions were brought against those persons implicated in the crimes committed against SITRABI trade union officials, and 24 of the 26 defendants were convicted and sentenced to two and a half years in prison. This case had been appealed by the Public Ministry on the grounds that the sentence imposed was insufficient, a fact which demonstrated the Government's determination to ensure that such crimes did not go unpunished. Other cases were being investigated and satisfactory results were expected which would permit justice to be served. The Government's message was clear. It would not permit violent acts against trade union members to be committed with impunity.

The speaker thanked the Committee, noting that its persistent efforts in the case of Guatemala had contributed to overcoming the problems noted by the Committee of Experts and stating that Guatemala had now brought its legislation into conformity with Convention No. 87, an instrument ratified almost 50 years ago. He respectfully requested that the Committee's conclusions take note with satisfaction of the progress achieved since, despite the fact that the Committee of Experts had not yet analysed the amendments adopted, the written communication submitted demonstrated that a number of provisions previously criticized had been completely repealed.

The Worker members recalled that the Conference Committee had been examining the case of Guatemala since the 1980s and that the ILO was constantly following developments relating to freedom of association in the country. They also recalled that a direct contacts mission had visited Guatemala since the last session of the Conference.

In its observation this year, the Committee of Experts once again recalled the various problems which arose concerning the violation of trade union rights, such as the multiple restrictions on the right to strike, the limitations on the right to strike and the sanctions imposed in this respect, as well as the surveillance of trade union activities. In the written communication submitted and in his statement, the Government representative had provided the Committee with a range of information concerning the adoption of legislative decrees by the Congress on 25 April and 14 May 2001. In that connection, the Worker members regretted that, despite the dialogue initiated with the social partners with a view to agreeing upon reforms, the consultation process had not been productive and the reforms proposed to Congress had not been reached by consensus or through any prior agreement with the social partners. On the substance of the case, they pointed out that the decrees adopted responded to many of the points which had been raised by the Committee of Experts over many years. However, before taking up a position, it would be necessary to let the Committee of Experts examine all the amended texts in detail.

Such prudence was particularly necessary since a number of important points had not been addressed satisfactorily, such as: confining the holding of trade union office to nationals of Guatemala; the imposition of quotas in relation to the decisions taken in certain areas by trade union activity, and particularly strike action; the possibility for the President of the Republic to suspend trade union activities, and particularly strikes; and the direct intervention of the judicial authorities in labour disputes. They emphasized that the Committee of Experts in its observation had recalled that the imposition of compulsory arbitration in non-essential public services and the prohibition of solidarity strikes by unions were also violations of the Convention and had noted that the new decrees did not appear to address this particular point. They indicated that, while welcoming the progress achieved, they regretted the absence of any real tripartite dialogue and reserved their position on the merits until the Committee of Experts had commented on all the amended provisions of the Labour Code. In its introductory remarks, the Committee of Experts had noted with concern the conclusions of the Committee on Freedom of Association in case No. 1970 following a complaint made by the General Confederation of Workers of Guatemala, the Latin American Central of Workers, the World Confederation of Labour and the International Confederation of Free Trade Unions. The allegations in this complaint were multiple and included murders, physical assaults, death threats, raids on the homes and attempted kidnappings of trade union leaders and activists, anti-union dismissals, obstruction of collective bargaining and the non-certification of collective labour agreements. This sinister list illustrated the particularly serious situation with regard to the exercise in practice of the most elementary trade union rights. Furthermore, impunity was guaranteed too often in the identification and punishment of those guilty of such criminal acts. For this reason, the Worker members once again drew the Government's attention, as the Committee of Experts and the Governing Body had done, to the fact that "freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety, are fully respected and guaranteed" with particular reference to the right to life and that "in the event of assaults on the physical or moral integrity of individuals (...) an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts".

The Employer members, referring to the statement made by the Worker members, recalled that the Committee of Experts had been making comments on this case since 1980 and that it had been examined by the Conference Committee on a number of occasions. In its comments, the Committee of Experts had raised a number of general issues, such as the need for a peaceful environment and the importance of the rule of law and order and respect for fundamental human rights. While these matters were of importance for every State and the well-being of its citizens, they did not constitute a requirement under the Convention, even though it was unlikely that freedom of association could be achieved in their absence. The Employer members pointed out that, however important they were, it was not within the ILO's competence to examine these issues.

The comments of the Committee of Experts could be divided into two categories. The first concerned the interference of the State in the internal affairs of trade unions, while the second related to the right to strike. In this respect, the Employer members recalled once again that the right to strike was not regulated by the Convention. Another issue covered by the Committee of Experts concerned arbitration. In the view of the Employer members, a clear distinction needed to be made between compulsory arbitration and the establishment of an arbitration procedure.

With reference to the information provided by the Committee of Experts that the President of the Republic had transmitted to Congress a Bill to amend or repeal some of the provisions on which the Committee of Experts had been commenting, the Government representative had indicated that the Bill had been adopted by the Congress in the meantime. The new Act contained amendments relating to a number of the points raised by the Committee of Experts. These amendments concerned not only interference by the State in the internal affairs of trade unions, but also on the right to strike. They agreed with the Worker members that the new Act would have to be examined by the Committee of Experts.

Turning to the attempt which had been made by the Government to establish a tripartite consultation mechanism, the Employer members noted that, as in the past, the outcome had not been satisfactory. Although the reasons for the failure were not clear, one reason might be the long-term civil-war like conditions in the country. Although peace had been re-established, its effects still needed to be felt in practice. Moreover, although tripartite consultation was always welcome, in the final analysis it was the responsibility of the Government to take the necessary measures to bring the national legislation into conformity with the Convention. Even though the situation had changed and new legislation had been adopted, past experience showed that it was unlikely that this would be the last time that the case of Guatemala was examined by the Conference Committee. The Government had taken a number of first steps which were in the right direction. The Employer members emphasized that it was within the Government's discretion as to whether all the issues raised by the Committee of Experts would require amendments to the national legislation. In their view, there was no need for legislative measures to be taken with regard to the right to strike, since the right to strike was not covered by the Convention.

The Worker member of Guatemala indicated that the issue of the criminalization of socio-economic disputes was particularly interesting in the context of the free exercise of trade union rights, since utilizing the threat of criminal prosecution to resolve labour disputes constituted a method of restricting workers' right to organize.

He pointed out two cases in Guatemala that exemplified the use of penal action in the field of labour, as well as the violation of the right to freedom of association. The criminalization of labour disputes constituted a violent anti-union practice, as was shown, for example, by the harassment suffered by the members of the Union of Banana Plantation Workers of Izabal (SITRABI), of the Bandegua Enterprise (a subsidiary of the Del Monte multinational corporation) which involved the use of firearms, theft, threats, illegal detention of trade union officials and members, raids and other crimes, with the tacit consent of the Ministry of the Interior and the Public Ministry. The same types of incidents had taken place in other cases. In the case of SITRABI, criminal activity was used with the clear objective of destroying an enterprise-based trade union and restricting through the use of threats the free exercise of rights to freedom of association guaranteed by the Guatemalan Constitution, the Labour Code, the peace agreements signed by the Government, the guerrilla leaders and the Guatemalan military, as well as international Conventions ratified by Guatemala. He said that the SITRABI case was to be deplored by all international and national trade unions and had been closely followed by the United Nations verification mission (MINUGUA), the Office of the High Commissioner for Human Rights and the ILO. In fact, MINUGUA had expressed its concern at the practice of bringing criminal complaints against trade union leaders for events occurring allegedly in the context of labour disputes, citing the SITRABI case as well as the cases of the Alabama and Arizona ranches. In the Arizona case, the trade union adviser for the Guatemalan Workers' Trade Union (UNSITRAGUA), Mr. Jorge Estrada, had been arrested on the grounds that he had made threats and caused damage.

The second case examined involved the Union of Workers in the Judiciary (STOJ) and the Supreme Court (CSJ). In that case, the management's refusal to negotiate a new collective agreement on working conditions had led to the filing of a complaint by the CSJ against the trade union officials for work stoppage. This problem was compounded by the bias of the body charged with imparting justice, before which the trade union officials had to appear. Some years later, this high-level body had handled a new case brought against the trade union members in which no just cause had been shown for their dismissal. In addition, the CSJ had failed to comply with the Constitutional Court's order to grant the workers protection.

The slow action of the administrative and judicial system could be seen in the context of the above disputes, as well as in other cases. The use of criminal prosecution as a means of resolving these disputes was only one of the ways in which the state agencies had failed to follow national law and it was clear that freedom of association was impaired by these criminal actions, despite the establishment of a legal framework which was relatively favourable to freedom of association.

With regard to the issue of freedom of association, in its report on labour rights, MINUGUA had recommended that the legislation should be amended to bring it into conformity with the principles established by Conventions Nos. 87 and 98, thereby broadening the protection of the right to freedom of association, particularly at times when the collective interest was more fragile. Similarly, MINUGUA had called for all components of the justice system to interpret in a broad, progressive and consistent manner the legal provisions providing for the effective protection of the right to freedom of association. He stressed that Guatemala was one of those countries that the Committee of Experts had asked to modify its domestic legislation with regard to the Convention, as the legislation posed an obstacle to the real exercise and protection of trade union rights. The recommendations of the Committee of Experts had been repeated year after year, including in their report for the year 2001.

He added that trade union representatives had met with various government representatives to ask them to draft legislation in accordance with the Committee of Experts' recommendations. However, the result had been the amendments to the provisions of the Labour Code that restricted the right to strike in harvest time, by granting the President the power to suspend the right to strike through the Council of Ministers if deemed appropriate. He stressed that the right to strike of public employees had not even been taken into consideration, despite the recommendations made by the Committee of Experts, nor had Decree No. 35-96 been repealed.

He added that it was necessary to break the existing cycle of impunity, as demonstrated by the example of the SITRABI trade union, whose leaders had been forced to flee the country to protect their lives and those of their families. Speaking on behalf of the trade unions and farm workers' organizations, he called for amendments in conformity with the labour rights. He also stressed that these amendments should be in conformity with the right to freedom of association, the right to strike and the right to collective bargaining.

The Employer member of Guatemala stated that, as the Minister of Labour of Guatemala had indicated, two recent Decrees of the Congress of the Republic were published in the Official Gazette. These have been introduced into the Labour Code, changes which, among other things, appeared to bring the national legislation into conformity with Convention No. 87. Taking into account the extent and complexity of these changes as well as that they would not come into force until 1 July 2002, it appeared that it would be highly desirable that this Committee begin its examination after considering what the Experts might say in this respect in their next report. What the Committee should examine instead, in order to have direct relation to the promulgated legal reforms and in relation to what had been already indicated and duly noted in front of the Committee in its meeting in 2000, was the practice by the current Government of the Republic of Guatemala to ignore the Tripartite Committee of International Labour Matters, which on may occasions had expressed its desire that the Congress of the Republic consult with it prior to adopting labour laws, in the spirit of the fundamental principle of this Organization, of tripartism. Similarly to what happened last year, the draft sent by an Executive Body to the Congress of the Republic was not discussed and was not the result of consensus of the social partners. In the present case, as distinct from 2000, not even that of the workers. This was the reason why the workers and the employers jointly addressed to the Congress of the Republic in order to ask it to correct the mistake and to provide the employers an opportunity to express their opinion. Despite the obstinate resistance of an Executive Body, in the person of Deputy Minister of Labour, the Congress agreed to the request, submitting the proposed changes to the consideration of both parties of the productive sector. The aforementioned permitted to open the dialogue, the result of which was the first of the Legislative Decrees previously mentioned, which received a bilateral consensus of workers and employers. Without appreciating an important effort made by the productive sector and yielding to other types of pressure, the Executive Body insisted on its original proposal which was not duly consulted with the workers and employers. This resulted in the adoption of the second of the Decrees in question. The aforesaid indicated the absence of inclination towards dialogue which characterized the current Government of the Republic, which, instead of striving towards reconciliation, insisted on division and opposition. The documentary evidence of the above could be found in the archives of this Organization. It was sufficient to read the proceedings of the Tripartite Committee of International Labour Matters in order to establish the resistance of the Minister to the discussion of the new Labour Procedural Code. There were also the proceedings which reflected the healthy tripartite practice used by this Committee until the current authorities came to power. The return to the authoritarian power had already caused severe damage to the process of social dialogue which was implemented from the mid-1990s and which had already brought concrete and positive results, such as the changes to the Labour Code agreed within the Tripartite Committee with the aim of complying with the Peace Agreements. In summary, pretending to comply with what the Experts had indicated in respect of Convention No. 87, the Government of the Republic of Guatemala violated, once more, another Convention regarding this field, Convention No. 144 relating to tripartite consultations.

The Worker member of the United States noted that although there was a tendency in this Committee to argue that Guatemala had made serious advances due to labour law reform and the interruption of the continued review of the situation in Guatemala by the United States in the context of the generalized system of preferences, this country had taken too many steps backwards. The speaker commended the Committee of Experts for reporting on the violation of the physical integrity of Guatemalan trade unionists and demonstrating the direct relevance of this question to the Convention. The recent reforms of the Labour Code mentioned in the report of the Committee of Experts were totally contradicted by other provisions in the law. The granting of the right to strike during harvest in the rural sector could be undercut by another provision of section 243 of the Labour Code, which gave the executive the power to declare illegal any strike which could adversely affect fundamental economic activities. Moreover, section 243 continued to proscribe strikes in the transport, health and energy sectors. The Guatemalan nationality requirement for trade union leadership persisted in section 220. The abolition of the Labour Code provisions concerning detention and judgement for unlawful strikes was contradicted by section 390 of the Penal Code concerning strikes which could be interpreted as paralysing or disrupting the functioning of enterprises which contributed to the economic development of the country. Section 255 of the Labour Code still gave judges the power to allow the police to perform services as a "precautionary measure" pursuant to an ex officio decision or a petition by the employer. The new section 216 which required signed and written proof of the creation of a union by at least 20 workers required a written disclosure of the pro-union activists and imposed a new literacy requirement. The law maintained the threshold requirement of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. This requirement was prohibitive for industries with thousands of workers such as the agricultural sector. The new section 233 increased the requirement from two to four unions necessary to form a federation and from two to four federations to form a confederation. Finally, the new section 379 imposing individual liability on workers for damages resulting from a strike or other collective action created a chilling effect. In conclusion, the facts contradicted conventional wisdom which called for a more lenient approach towards Guatemala.

The Worker member of Colombia said that the Committee was once again engaged in analysing the difficult situation faced by the workers and people of Guatemala due to the climate of intolerance surrounding the trade union movement and to labour legislation which was not into conformity with the ILO Conventions. He recalled that a direct contacts mission had recently visited Guatemala as a result of the violations of the Convention. He indicated that trade unionists had been murdered, largely with impunity. He therefore requested the Government of Guatemala to provide information on the status of the investigation into the murder of Mr. Osvaldo Monzón Lima and other murdered trade unionists so as to bring an end to the climate of impunity to which he had referred. He recalled that the Government member had undertaken the previous year that the reforms of the Labour Code would be achieved through consultation and consensus. However, according to information that had been received from the workers' confederations in Guatemala, that had not happened and the reforms had been imposed. That created a crisis of confidence concerning the commitments made. Although he recognized the progress that had been made, he nevertheless wondered when the reforms would be completed. Finally, while he respected the autonomy of Guatemala, he said that it was unjust that the problems of poverty and social exclusion should be compounded by violations of fundamental rights.

The Worker member of Norway stated that there were indications that some of the most unacceptable violations of Convention No. 87 in Guatemalan law had been eliminated in the recent revision of the Labour Code. However, many of the agreements negotiated between the trade unions, the Government and the employers' representatives after the ILO direct contacts mission in April 2001 had not been included in the Labour Code. Although Guatemala ratified Convention No. 87 as early as 1952, it was still not fully implemented. This explained why trade unionists had been killed and persecuted through the years for defending workers' rights. By not having brought their legal framework into conformity with Convention No. 87 and by not assuring the application of existing laws, the Guatemalan Government in fact tolerated and contributed to the violations of trade union rights. Assassinations of trade union leaders went unpunished. Death threats against union activists were so common that they received no attention in the judicial system. Recent examples included the following union leaders: Maria de Lourdes in the plantation sector; workers in the municipality of Tecun Uman; Juan Pacheco from the public sector and Mario Sepulveda from the railway union. The last had been forced into exile. National authorities seemed to be paralysed. There were, for instance, laws stipulating minimum benefits for maquila workers, but little was done when companies left the country and left workers without pay. On the few occasions when the courts demanded justice, their orders were simply ignored. In the case of the SITRABI union, the persons who forced union leaders to resign and threatened both the leaders and their families were actually brought to trial. However, the sentences they received were extremely light. The union leaders from SITRABI were forced to live in exile. The reforms of the Guatemalan Labour Code had brought about some positive changes, but they were far from enough to prevent severe violations of labour rights. Moreover, the laws already in force were not being respected and applied. Until that happened workers would be persecuted and denied their basic human rights. This Committee, as well as trade unions in all parts of the world, would continue to support the workers of Guatemala until trade union rights were fully implemented.

The Worker member of Uruguay maintained that although there might have been an effort on the part of the Guatemalan Government, violations of Convention No. 87 still persisted. He said that he thought he had seen a mistake in the records of the previous year when they said that the Government was committed to developing trade unionism, instead of saying that it was going to develop the instruments and the means necessary to strengthen trade unionism. But there was no mistake since, indeed, disregarding the principle of tripartism, the Government had not consulted the workers when drawing up legislative reforms. He said that the power conferred on the President to suspend a strike was an interference in the exercise of that right. He asserted that regulating the right to strike was a restriction on the right to strike, that was to say the use by workers of that means of defence. The employers had other means of defence such as closing their company and moving to another country, but for workers the right to strike was a fundamental element of Convention No. 87.

The Worker member of Brazil recalled that when the Peace Agreement was concluded in Guatemala in 1996, it had given rise to expectations that Convention No. 87 would be applied in full. However, there had been an increase in anti-trade union acts, as noted by the Committee of Experts. From an analysis of the observations in the reports of the 1980s and 1990s, it could easily be concluded that the Peace Agreement did not extend to the world of work. The victims were the murdered and disappeared trade unionists who added to the long list of cases before the Committee on Freedom of Association. He recalled that the Committee of Experts had underlined the failure to respect trade union freedom and fundamental rights. He said that just before the start of the Conference, the Congress of the Republic of Guatemala had published a reform of the Labour Code which amended the articles repeatedly singled out by the Committee of Experts. Those reforms had still not been examined by the Committee of Experts. The reforms went further than the Labour Code. Nevertheless, it seemed that a number of the new provisions were not in conformity with Convention No. 87 and could be prejudicial to workers. The reforms maintained an advisory service for the creation of trade unions which could perpetuate the interest of the Government in influencing new trade unions. The restriction on participation by foreign workers on trade union executive committees was also retained. Furthermore, the provisions on compulsory arbitration remained in force without amendment. The judiciary, ex officio, or at the request of one of the parties to a dispute, had the power to ban "preventatively" an illegal strike. Strikes were subject to so many legal requirements that it was certainly highly likely that they would always be considered illegal. A minimum number of workers to create a trade union higher than the standard established by the Committee on Freedom of Association was required. The authority given to the Government relating to the registration of trade unions and the requirements for forming federations and confederations were also contrary to the principle of trade union freedom. Finally, he highlighted that, concerning strikes in the essential services, excessive and arbitrary interference by the judiciary and the Government was permitted, firstly, because it decided the minimum activities that must be maintained without setting out any criteria and, secondly, because it conferred on the President of the Republic the power to suspend a strike when he considered that it would seriously affect an essential service.

The Government member of Mexico indicated that she had listened with great interest to the information relative to the Labour Code amendments adopted by the Congress of Guatemala in order to bring the Labour Code into conformity with the provisions of Convention No. 87, and especially to meet the requests formulated by the Committee of Experts for a number of years. She acknowledged that progress had been made in adapting domestic legislation, and highlighted the engagement of the Government delegation of Guatemala to proceed with a more extensive revision of labour legislation. She indicated that those elements should be reflected in the conclusions of the Committee, and expressed her belief that the results of the direct contacts mission would confirm the progress made.

The Government member of the United States pointed out that her Government had a keen interest in workers' rights - particularly freedom of association in Guatemala. Her Government had urged the Guatemalan Government to seek ILO technical assistance and had provided financial support for certain activities with a view to bringing the Labour Code into full compliance with Convention No. 87, ensuring implementation of the Code in practice, and bringing about an end to the violence against Guatemalan workers and their representatives. The speaker welcomed the significant amendments to the Labour Code that were recently approved by the Guatemalan Congress. She appreciated the efforts and goodwill demonstrated by the Government throughout the process. Now she looked forward to full implementation of these amendments. Under the auspices of the US trade benefits programme, her Government would continue to follow developments closely. Therefore she urged the Government to continue its work in cooperation with the ILO in order to ensure that law and practice fully complied with Convention No. 87.

The Government member of Argentina indicated that she had read carefully the written information submitted by the Government, which contained a summary of recently adopted legislative decrees, in the light of the observations made by the Committee of Experts. She considered that those texts answered practically all the observations of the Committee of Experts. She said that only one subject would remain pending, concerning the right to strike in the public sector. She expressed the hope that the Committee's conclusions would reflect the view that those legislative measures answered and satisfied almost all the observations levelled against the Government. She recalled that the Committee's conclusions were one of the most important factors in encouraging cooperation and compliance by governments which had the political will to improve their situation and the honest desire to fulfil their commitments, as, in her view, was the case of Guatemala. That would no doubt encourage the Government to overcome any remaining difficulties.

The Government representative, replying to the interventions in the debate, reiterated that the two legislative decrees adopted by the Congress and summarized in the written information submitted to the Committee, clearly showed positive progress. Firstly, the decrees directly repealed a considerable number of provisions criticized by the experts and, secondly, amended other provisions. The latter were not subject to consideration at that time since it was up to the Committee of Experts to give its opinion on them. As for the cases of violence mentioned by the Committee of Experts, he said that those had mainly occurred during the 36 years of war and the 50 years of dictatorship under which the country had suffered. The subject had been investigated by the direct contacts mission and its report would have to be awaited in order to analyse it. In any case, the authorities had already begun to comply with the recommendations of the mission and a monitoring unit dealing specifically with acts of violence against trade unionists was already operational in the Public Prosecutor's Office. He emphasized that the discussion had shown up contradictions concerning the role of tripartism in legal reform. He pointed out that the first legislative decree of the Congress reproduced an agreement between the CACIF (an employers' organization) and the UGT-UASP (representing the CGTG and UNSITRAGUA) and that was incontrovertible evidence of tripartism. The second legislative decree of the Congress reflected the fact that, as stated by the Employer members, tripartism did not replace the responsibility of the State. The Congress had adopted that decree when the employers and workers could not agree on a solution to the remaining problems highlighted by the ILO and its organs concerning Conventions ratified by the State. The Congress therefore adopted the second decree in the context of the ILO's requirements and the Peace Agreements. One of the objectives of that decree was specifically to put an end to the impunity of the violations of workers' rights. Moreover, it was all very well for some Guatemalan speakers to talk of tripartism in the terms that they had when, at the same time, despite the fact that their organizations had been invited, they had not participated in the discussions on the draft Labour Procedures Code intended to end the delays in trials and sentences not carried out, nor had they attended meetings on the revision of the Substantive Labour Code. Those omissions were documented. Thus, in the draft first reform of the Labour Code (January 2000), which had the agreement of the workers' sector, the employers' sector had walked out. Faced with such a situation, the Government was under an obligation to fulfil its responsibilities to the worker population and to the ILO and could not accept that one party should tell it: "do what we tell you or do nothing." The speaker reiterated that in any legislative reform it would receive and examine the opinions of the ILO and all those who wished to assist because a combination of ideas and help was best. Furthermore, he considered that the discussion of the case should have taken place after the opinion of the Committee of Experts and the report of the direct contacts mission was known. Finally, he requested that the legal texts adopted and the efforts made by the Government concerning the application of the Convention should be mentioned in the conclusions.

The Worker members expressed their concern at the deterioration in the social climate and the criminalization of social conflict. They also expressed their disquiet at the violence exercised with impunity against trade union officials. Whilst noting the changes in the legislation, the Worker members recalled that many provisions were still not in conformity with the Convention. Under those circumstances, the report of the direct contacts mission would be useful in evaluating the situation. The written information submitted by the Government did not answer all the questions raised by the Committee of Experts. The Committee should examine the information in the light of the actual situation, on the one hand, and the provisions of the Convention, on the other, before, if necessary, discussing the case again.

The Employer members stated that both Employer and Worker members were dissatisfied with the situation in Guatemala although it was not clear whether their dissatisfaction was based on the same grounds. A number of issues had not been clarified by the debate in this Committee. The undeniable facts were that for many years there had been considerable discrepancies between national legislation and the Convention. Many of the discrepancies appeared to have been removed by the new amendments. However, it was for the Committee of Experts to examine these amendments in detail to ascertain whether there was compliance with the Convention.