Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the discussion held in the Conference Committee on the Application of Standards in June 2006 and in the context of Cases Nos. 2203, 2241, 2295, 2341, 2361, 2413, 2445 and 2482 presently before the Committee on Freedom of Association.

The Committee also notes the reply of the Government to the comments submitted by the Trade Union of Workers of Guatemala (UNSITRAGUA) on 26 August 2005, which the Committee had taken note of in previous comments and which refer principally to matters already raised by the Committee and treated in the cases examined by the Committee on Freedom of Association. In this regard the Committee takes note of the information provided by the Government, according to which UNSITRAGUA had accepted the Government’s invitation to present all the complaints submitted to the ILO supervisory bodies, and had presented a list of cases and concerns that will be analysed by the Government.

The Committee takes note of the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 12 July 2006, which refer to: (1) the climate of violence in which, in certain cases, trade unionists must carry out their union-related activities; (2) the dismissal of workers attempting to organize a union or engage in collective bargaining; (3) the circulation of blacklists; (4) acts of intimidation by employers aimed at trade unionists; (5) the tardiness of the administering of justice; (6) the low number of collective agreements concluded in the maquila sector. The Committee requests the Government to submit its observations thereon.

The Committee notes the general declarations of the Government, according to which efforts have been taken at the institutional level to ensure respect, administratively and legislatively, of the Committee’s observations. The Government emphasizes that the dimension of work is essential for the successful application of the Free Trade Agreement between Central America, the Dominican Republic and the United States, which entered into force in April 2005. In the context of this treaty a document entitled “Building upon progress: Reinforcing respect and capacities” was elaborated, which contains recommendations and concrete means to accelerate and improve the respect for labour laws and institutions, and which identifies six areas of priority for action intended to improve the rights of workers and comprised of the strengthening of the judicial system with respect to labour matters and guarantees of protection against discrimination in the workplace. The Government adds that, through the “Comply and Win” plan approved by the Government of the United States and the Ministry of Labour and Social Security, it has committed itself to publicizing and disseminating – by means of print media, radio and the Internet – the Labour Code, the ILO’s fundamental Conventions, and the establishment of the office of alternative dispute resolution. Moreover, in this framework, and with the financial support of the US Department of Labor, the ILO Subregional Office for Central America will carry out a project entitled “The strengthening of justice at work in Central America and the Dominican Republic.”

The Government adds that the Ministry of Labour and Social Security, through the Unit on International Labour Affairs, had initiated a process of training on the ILO and the State’s obligations with respect to ratified Conventions, intended for labour court judges, the appeals chambers of the Supreme Court, the Public Ministry’s Special Office on offences against journalists and trade unionists, and other public institutions. The Tripartite Commission, in particular its subcommittee on legal reform, continues to convene periodically in attempting to arrive, through consensus, at a resolution in response to the comments of the Committee of Experts. Further significant accomplishments include: scheduling bimonthly meetings of the tripartite subcommittees on legal reform; developing proposals on the procedures for the adjudication of labour violations; and maintaining constant contact with the Congressional Labour Committee in order to approve proposals formulated on a tripartite basis. The Government had put into motion a rapid response mechanism for cases, in the context of which eight conciliation meetings were held, each one concerning cases of violation of trade union rights. Finally, the Government indicates that the First Vice-Minister of Labour met periodically with representatives of workers’ and employers’ organizations in order to establish a permanent mechanism for dialogue intended to produce consensus.

The Committee recalls that, for several years, it has raised a number of points concerning the exercise of trade union rights in practice:

Failure to comply with orders to reinstate dismissed trade unionists. The Committee notes that, according to the Government, after having consulted the labour court judgements, it had not found any pending reinstatement orders. It adds however that, before the Chamber of amparo (protection of constitutional rights) and Interim Judgements of the Supreme Court, there are actions in amparo pending that have prevented the execution of orders to reinstate until a final decision has been rendered.

Tardiness of the procedure to impose penalties for breaches of the labour legislation. In this regard, the Committee notes that, according to the Government, the Special Commission on Reforms in the Legal Sector had rendered a favourable judgement with respect to the reform of 12 articles of the law on amparos and their constitutionality, with the goal of accelerating the procedures, obtaining more effective protection of fundamental individual rights, so as to render such protection equal to those afforded other rights to which recourse may be had. The Congress of the Republic had in its third reading approved the discussion and approval of reforms to the law, which was transmitted to the Constitutional Court. The Government adds that, according to the statistical information compiled by the Supreme Court, there are no complaints respecting the tardiness of the procedures for sanctions against violations of trade union rights. The Committee observes nevertheless that the trade unions had previously drawn attention to the problem of the slowness of the procedures.

Need to promote trade union rights in export processing zones (maquila enterprises). The Committee takes note of the Government’s indication that a national political project of consultation is developing that is free to workers wishing to unionize and consists of three phases: (1) the elaboration of educational materials on freedom of association; (2) the training of civil servants in the Labour Ministry on issues concerning collective rights at work and administrative rights; (3) the establishment of free legal counselling services in the central headquarters and regional offices of the Ministry of Labour; (4) the evaluation of the functioning and continuity of the project. The Government adds that since 2003 ten labour inspectors in the maquila sector have been trained, and that a special unit is charged with complaints and disputes at work. The Committee also refers to the existence of a conflict prevention body within the maquila sector, the principal function of which consists of coordinating the dissemination of information on rights at work to workers, managing directors and middle managers in the maquila sector. The Government indicates that, in August 2006, a tripartite seminar was held on association rights on rights at work and trade union rights in the maquila sector, with the support of the ILO subregional office. According to the Government, there are actually eight industrial textile unions in the maquila sector and, between January and March 2006, two new trade unions have been registered, comprised of 24 and 27 affiliates, respectively.

Numerous anti-union dismissals and violations of collective agreements. In this respect the Committee notes that the Government provides general information on the number of complaints presented and the measures in progress concerning these complaints, in different regions and export processing zones. The Committee also notes the Government’s statements, according to which the tripartite commission on international labour affairs had promoted the establishment of a rapid intervention mechanism for complaints relating to trade union rights, in the context of which nine cases were heard in 2005, and four in 2006. Moreover the Government provides information submitted by various labour tribunals demonstrating that, in one tribunal for instance, 241 trials concerning reinstatement, termination of contract and reprisals were in progress. The Committee notes nevertheless that, for example, two complaints concerning anti-union discrimination in the private sector and five in the municipal sector had been submitted to the Sixth Regional Chamber of Quetzaltenango of the Ministry of Labour and Social Security. As concerns the dismissal of trade union officers, the Committee notes that there were 25 complaints in the private sector and 18 in the municipal sector. As concerns the failure to apply collective agreements, there were two complaints in the private and 18 complaints in the municipal sectors. According to the information provided by the tribunals, there were no cases concerning violation of a collective agreement. Finally, there were 16 complaints relating to the export processing zones.

In its previous comments the Committee had noted the comments submitted by several national and international trade union organizations, and had highlighted the very high number of dismissals of trade union officers and the recurring violations of the right to collective bargaining, including in the public sector.

Inadequate guarantees in the procedure for the termination of civil servants (section 79 of the Civil Service Act; section 80 of its implementing regulation; Decree No. 35-96 amending Decree No. 71-68 of the Congress of the Republic and Government Order No. 564-98 of 26 August 1998). As concerns this issue, the Committee notes the Government’s indication that the persons affected may submit an administration appeal before the National Chamber of the civil service (articles 79 and 80 of the Law on civil service and its regulation) and may also appeal to the judicial tribunals in conformity with the labour legislation.

Need for the Code of Labour Procedures to be subject to in-depth consultations with the most representative organizations of workers and employers. The Committee notes the indications of the Government, according to which the Code of Labour Procedures is not on the agenda of the tripartite commission on international labour affairs, or that of the tripartite subcommittee on legal reform, and that there exists no will or support from any quarter to propose consultations with the most representative workers’ and employers’ organizations.

Statistics. The Committee notes the abundant statistical information submitted by the Government concerning complaints in different regions of the country, from 2005 to the beginning of 2006, as well as the complaints arising out of the maquila sector from 2004 up to the beginning of 2006.

Generally speaking, the Committee observes that the majority of complaints arise out of the private sector, although the number of complaints in the public sector remains significant. The facts revealed relate principally to: violations of collective agreements; acts of employer interference; acts of anti-union discrimination, particularly in the context of trade union formation; and anti-union dismissals. In the majority of cases, the procedures resulted in conciliations or the withdrawal of the case. The Committee observes that the number of sanctions is very low; in fact, the statistics provided by the Government indicate not one case involving sanctions.

Reform of the Civil Service Bill. As regards the reform of the Civil Service Bill, the Committee notes the Government’s statement that it had organized broad consultations with all sectors of society and had sent the draft Bill to Congress in November 2005, however the Congressional labour committee had issued an unfavourable decision regarding the said Bill.

Technical mission. Taking note of the measures adopted by the authorities and the results of the dialogue held in the Tripartite Commission, the Committee reiterates its concern with the persistence of the problems it had been raising for several years. In this respect, the Committee welcomes the Government’s recent acceptance of a technical mission in the country and expresses the firm hope that this would help the Government to take the necessary measures to bring the national legislation into conformity with the requirements of the Convention. The Committee requests the Government to keep it informed in this regard.

Awaiting the result of the mission accepted by the Government, the Committee will not proceed with a detailed examination of the pending issues. The Committee wishes however to refer to the conclusions of the Conference Committee, which requested the Government to take the necessary measures without delay to bring the law and practice into full conformity with the Convention in the near future, in both the public and private sectors, and urged the Government to adopt further measures for the effective protection of the rights set out in the Convention for workers in export processing zones.

The Committee considers that the Government should provide additional information to the technical mission and the Committee on the issues raised in the present observation, including statistics on collective agreements, and information on the coverage and rate of unionization, as well as an evaluation by the tripartite committee of certain issues in particular which remain deficient in the institutional system for the defence of trade union rights.