The Government representative took due note of the conclusions. He reiterated the commitment made by the Minister of Labour who stated that the Government will continue to follow up on these issues with due consideration.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

The Government provided the following written information.

The concerns which had been expressed by the Committee of Experts for a number of years were shared by the Government which had taken office in January 2012. In order to address such issues, specific actions had been implemented with a view to producing changes in the management of labour matters. In its 2013 report, the Committee of Experts had noted that the Government had reported progress in the following areas: the implementation of the new national policy on secure, decent, high-quality employment and of the ongoing policy on social dialogue; the strengthening of the Ministry of Labour and Social Security in budgetary, regulatory and institutional terms, including increasing the coverage of the general labour inspectorate; the signature of an agreement between the Public Prosecutor’s Office and the International Labour Standards Department of the ILO concerning subjects of relevance to the supervisory bodies; the strengthening of national tripartite dialogue, the first result of which had been the signature of the Memorandum of Understanding relating to the implementation of the ILO Technical Cooperation Framework: Decent Work Programme for Guatemala; the coordination among State institutions to give priority to dealing with complaints concerning acts of violence against trade unionists and impunity, which regrettably also affected the whole population; the application of the protection mechanism to trade unionists who request it; the participation of the Public Prosecutor’s Office in the Inter-Institutional Labour Commission and the Tripartite Committee for International Labour Affairs; and the reinforcement of the investigation capacity of the Public Prosecutor’s Office by increasing staff numbers and establishing working methods for resolving cases involving acts of violence against trade unionists. The Committee of Experts had also welcomed in its report the following information supplied by the Government: the re-establishment of the special prosecution service for investigating offences against trade unionists; the conclusion of a cooperation agreement between the Public Prosecutor’s Office and the ILO, with initial action already taken to train prosecutors with regard to typical scenarios of anti-trade union violence and the factors behind such violence; and the inclusion in the National Tripartite Commission of trade union federations and confederations which had been excluded in the recent past.

Further to the report of the Committee of Experts submitted to this session of the Conference, the Government had taken steps to resolve the majority of the issues raised by the Committee of Experts, including the following: the streamlining of the procedure for the registration of trade unions, reducing the time taken for such registration from 226 to 20 working days; the establishment of a monthly working group with the participation of the Prosecutor General and trade union representatives, to keep them informed of the progress made in cases involving acts of violence which were under investigation and to record all important information which came to the attention of the Prosecutor General; the discussion of a draft cooperation agreement between the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG); the issue by the Public Prosecutor’s Office of a general instruction to regulate criminal prosecution in the event of non-compliance with rulings handed down by labour and social security courts; ILO technical assistance to the Public Prosecutor’s Office relating to the exchange of positive experiences with countries in the region in order to tackle anti-union violence and amend existing legislation with a view to improving criminal prosecution; meetings with the main trade union leaders of Guatemala, the Ministry of Labour and the Ministry of the Interior in order to reach decisions and take action in the quest for solutions to problems affecting the trade unions; the issue by the Ministry of the Interior of the ministerial agreement concerning the inclusion of the Standing Trade Union Technical Committee on Comprehensive Protection with a view to implementing public policies for the protection of trade unionists, based on processes for prevention and comprehensive protection, with the direct presence of trade union leaders and the Higher Office of the Ministry of the Interior; the presentation of the Labour Sanctions Bill, which amends the Labour Code, for adoption by the National Congress; the issue by the Ministry of Labour of the ministerial agreement containing instructions to deal with cases involving the closure of enterprises without appropriate payments to the workers, which would prevent such situations and strengthen the labour inspectorate; budget increases and reinforcement of the investigation capacity of the Public Prosecutor’s Office in order to combat impunity; the full operation of the judiciary’s Centre for Labour Justice, bringing together in a single physical space the relevant courts and administrative units; the significant reduction in the average time and duration of judicial proceedings from 19 to six months on average; the full operation of the unit for the implementation and verification of reinstatement orders and special labour procedures, which monitored due compliance with court rulings in order to ensure the restoration of workers’ labour rights; the establishment of the Economic and Social Council, which included representatives of Employers, trade unions and cooperatives; and discussion in the Tripartite Commission of the recommendations on judicial reform made by the Committee of Experts to agree on the action to be taken with a view to referral to the National Congress.

The Government would continue to make every effort to resolve the issues that were still pending and to implement the Committee of Experts’ recommendations, which were the issues behind the submission by a number of Workers’ delegates to the 101st Session of the Conference of a complaint under article 26 of the ILO Constitution, which was before the Governing Body. Accordingly, the Government of Guatemala had reported periodically to the Governing Body on progress made. Furthermore, the Governing Body had been informed of the signature, on 26 March 2013, of a Memorandum of Understanding between the Government and the Workers’ group of the Governing Body, on the basis of which tripartite measures would be taken to ensure the full observance by Guatemala of the Convention. Such measures were intended, inter alia, to prevent acts of violence against trade unionists, create conditions to ensure that the latter can work in a favourable environment and also strengthen the justice system, all with ILO assistance. The Government had requested the Office to establish quickly high-level tripartite representation in the country, as stipulated in the above instrument, and it would do its utmost to continue implementing its provisions, on a tripartite basis and with ILO support, in order to achieve the full and effective application of the Convention in the country.

In addition, before the Committee, a Government representative stated that since the current President of Guatemala had been elected, the Government had been engaged in a sustained process of ensuring full compliance with national legislation, international Conventions and fundamental labour principles. The many efforts of national tripartite dialogue and international contacts in recent months had resulted in the signing of two particularly relevant documents: the Memorandum of Understanding concluded in March 2013 between the Government and the Workers’ group of the ILO Governing Body; and the good faith agreement between the Government and that of the United States which brought to a close the dispute that the latter had initiated under the Dominican Republic–Central America-United States Free Trade Agreement (CAFTA–DR). The two agreements, which were complementary, constituted a roadmap for an agreed long-term solution to the problems besetting labour relations in Guatemala. The agreements had been endorsed by the social partners in the Tripartite Committee for International Labour Affairs and had opened up a historical process of social dialogue. In practical terms the implications of the agreements were of transcendental importance for the long-term resolution of the conflicts, which had been made possible in Guatemala. Among such consequences, he stressed the creation of a sub-committee within the Tripartite Committee and the fact that the mentioned committee had decided to address the negotiation and follow-up of international agreements with a scheduled working programme. He emphasized that the Government regretted and condemned the crimes that had been committed against union leaders, against their headquarters and against both unionized and non-unionized workers and that it had taken steps through the General Prosecutor’s Office to step up its investigation into the identity of the perpetrators and to have them brought to trial. Suspects had been arrested in connection with the recent murder of Ovidio Ortiz and Carlos Hernández. Better and more effective protection had been granted to union leaders who had requested police protection, a strategic alliance had been promoted between the General Prosecutor’s Office and CICIG to ensure the independent investigation of crimes, and inter-institutional cooperation machinery had been set up between the Public Prosecutor, the Ministry of Interior and the trade union organizations to shed light on crimes against union leaders.

As to the legislative aspects of the case, a consensus had been sought by the Government within the framework of the National Tripartite Commission to amend the legislation, but without success. In fact, the National Tripartite Commission had refused to inform Congress on the matter. Although the executive had the authority to present proposals for reform to the legislature, it had been deemed more prudent to abide by the recommendations of the National Tripartite Commission on respect for and the strengthening of social dialogue. Regarding the register of trade unions, the procedure that had recently been introduced made it possible for registration to be completed within the 20 working days provided for in the legislation. As to the Committee of Experts’ request for detailed statistics on the number of existing trade unions by economic sector, notably in the export processing sector (maquilas) and in the public and private sector, and on the number of collective accords that had been concluded, the Government was actively engaged in their compilation, for which it was seeking the ILO’s technical assistance. Finally, the Government representative thanked the Office and the Director-General for their contribution to the mission of the Director of the International Labour Standards Department that had taken place in February 2013 upon request of the Government and for the high-level tripartite mission that was shortly to visit Guatemala which would give assistance on mediation and the agreements signed. He was certain that the two missions would contribute to furthering and enhancing the Government’s efforts. The Government representative indicated that his presence during the examination of this case was proof of his Government’s commitment and political will, although this case was also being examined in the context of a complaint under article 26 of the ILO Constitution, which meant there was a double procedure in this regard. He expressed the hope that the conclusions of this Committee would contribute to the efforts already undertaken by Guatemala with the support of the international community and the ILO, including through the implementation of the Memorandum of Understanding of 26 March 2013. He requested the ILO’s support to ensure a positive outcome to the efforts already undertaken.

The Worker members observed that the case appeared in the list of individual cases this year further to the agreement reached between the Worker and Employer members of the Committee to examine all the “double-footnoted” cases from the 2012 report of the Committee of Experts, which it had not been possible to discuss the previous year. Briefly summarizing the background to the case, they recalled that: the case had been examined by the Committee on 14 occasions; further to a discussion in the Committee concerning the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the high-level mission which had visited Guatemala in April 2008 had also examined issues relating to the application of the Convention, which had resulted in the National Tripartite Commission adopting an agreement aimed at eliminating anti union violence, improving and modernizing the legislation and ensuring better application of Conventions Nos 87 and 98; in 2009, a mission comprising the Employer and Worker spokespersons had visited the country to assist with efforts to find sustainable solutions to all the issues raised, in accordance with the request made by the Committee in June 2008; a new high-level mission had visited the country in 2011; in 2012, a complaint had been submitted against the Government of Guatemala under article 26 of the ILO Constitution for violation of the Convention; at the request of the highest State authorities, an ILO mission had visited the country from 25 February to 1 March 2013; a Memorandum of Understanding had been signed on 26 March 2013 between the Government and the Workers’ group of the ILO Governing Body, in the presence of the ILO Director-General, with a view to deferring the decision of the Governing Body to establish a commission of inquiry. The Memorandum of Understanding was a positive sign and the Committee should encourage what had been set in motion by the Governing Body. It was now important to give the Government a chance to honour its commitments.

The Employer members noted the Government’s full willingness to submit information on the measures it had adopted, and of the comments of the Worker members. The case under examination was being considered by different monitoring bodies at the same time. While it was a “double-footnoted” case, which is why it had been included in the list of cases before the Committee, the situation had changed drastically since the Committee of Experts had last examined it, as a complaint had been submitted under article 26 of the Constitution. It should be recalled that the situation of Guatemala had been examined at the last meeting of the Committee on Freedom of Association within the framework of five specific cases, three of which had been considered to be serious and urgent. The Governing Body would examine both the report of the Committee on Freedom of Association and the analysis of the complaint under article 26 of the Constitution. The observation of the Committee of Experts made reference to a wide range of issues which could be grouped into four clusters: the complaint under article 26 of the Constitution, the situation of violence, legislative problems and other matters including the maquilas, the national tripartite commissions and statistical matters. As for legislative issues related to the right to strike, they referred to the 2012 discussions in which they had indicated that the Committee of Experts was not competent to interpret Conventions and that Convention No. 87 did not address the right to strike. They recalled that a high-level mission had been conducted in 2011, and they highlighted the written information that the Government had provided on the measures adopted further to the mission’s recommendations. They particularly emphasized the measures that had been adopted to expedite the registration of trade unions, to speed up court proceedings and to set up the Economic and Social Council. They also referred to the measures adopted with regard to the Memorandum of Understanding that had been signed in March 2013. They emphasized the measures to strengthen the legal system, and particularly to shed light on acts of violence. Swift and specific judicial investigations were needed to identify and punish the perpetrators and ensure that the same acts were not committed again in the future. They highlighted the importance of continued technical assistance from the Office. They noted with interest the Government’s decision to accept a new high-level mission and hoped that it would take place without delay.

The Worker member of Guatemala recalled that in 2012 the workers had presented a complaint under article 26 of the Constitution in view of the murders, attacks, harassment and threats involving union leaders, the lack of tolerance by both public and private employers of trade unions and the failure to comply with national and international standards, and particularly the present Convention. The presentation of the complaint had provided the occasion for the Government to take a number of political and diplomatic steps that had resulted in the signing of a Memorandum of Understanding with the Workers’ group and the Office. Guatemalan workers endorsed the Memorandum of Understanding, which gave the Government six months, from April to October 2013, to draw up and implement the operational plan that was currently being validated by the Tripartite Committee on International Labour Affairs. However, the Memorandum did not resolve structural problems and the anti-union policy continued to remain in place. For employers and some public officials, the best trade union was no trade union at all. New unions could not be established in the production and public service sectors, at either the national or municipal level. Workers who decided to organize in accordance with national and international legislation were immediately dismissed. Employers disregarded warnings and refused to comply with judicial rulings ordering them to reinstate dismissed workers immediately and to respect the trade union rights were denied. The executive, the judiciary and the legislative authorities were jointly responsible for the situation, as they did not enforce the law or comply with their obligations. At a time when the world was watching the historic trial of Guatemalan generals for genocide and crimes against humanity, trade unionists, indigenous peoples, women and human rights activists were being persecuted in ways that brought back memories of the atrocities perpetrated during the 1980s. And while “development” projects were imposed on the country without consulting or seeking the consent of those concerned, causing the displacement of families, the disruption of public services and the contamination of natural resources, the indigenous peoples and peasant communities were once again fighting economic and social inequality and to demand that their own view of development be respected. As the movements grew, so too did the violence used against them. Trade union and community organizations that rejected development policies found themselves accused of terrorism and treated as a national security threat. Their members were subjected to defamation, threats, kidnapping, attacks and extrajudicial execution, while others were imprisoned under trumped‑up criminal charges. The year 2013 had seen the assassination of Joel González Pérez, Juan Martínez Matute, Carlos Antonio Hernández, Santa Alvarado, Kira Zulueta Enríquez and Mayro Rodolfo Juárez Galdámez, and the murder of Luis Ovidio Ortiz Cajas over a year earlier had still not been elucidated. It was an urgent to implement labour relations policies that contributed to the development while at the same time respecting the right of all workers to organize freely and to bargain collectively. In conclusion, he condemned the violence that union leaders and trade unionists faced, along with their families.

The Employer member of Guatemala indicated that he considered it was inadequate that this Committee was dealing with the present case in the current circumstances, in which a whole process was under way to seek solutions to the problems identified by the Committee of Experts, and which was based on the Memorandum of Understanding signed by the Government and the Workers’ group at the last meeting of the Governing Body, as a follow-up to the complaint brought under article 26 of the ILO Constitution. He also recalled that the Committee of Experts had taken into account the progress made in recent years and the information submitted by the Government, in particular with regard to the issues of most concern during the present discussions, namely the violence affecting both union leaders and union members. He indicated that the Tripartite Committee for International Labour Affairs had been informed by the responsible persons of the Public Prosecutor’s office of cases mentioned in the report of the Committee of Experts. It was positive that there was a high percentage of cases with final sentences and cases in which the investigations had sufficiently advanced to expect results shortly. In this regard, he reminded the discussions in the Committee on other occasions on the violence that had affected the whole population of Guatemala. He expressed concern at the fact that it seemed that it was concluded a priori that in most cases the violence was motivated by trade union activities. He emphasized that the employers were the first to call for the investigation of crimes and for the perpetrators to be severely punished. Another aspect that should be noted positively was the progress that had been made in strengthening the institutions responsible for enforcing respecting trade unions, and particularly the general labour inspection and labour courts. The allocation of specific resources had resulted in capacity building and the recruitment of labour inspectors, who had been accused in the past of inefficiency and corruption. Moreover, the number of labour tribunals and the human resources available had increased. Even more important, judicial procedures had been considerably improved. Emphasis should be placed on the efforts made with regard to social dialogue in the Tripartite Committee for International Labour Affairs and the Economic and Social Council. These national bodies were responsible for following up the issues raised by the Committee of Experts and the Conference Committee. Some of these issues had also been recognized by the Government and the Workers’ group in the Memorandum. He emphasized the commitment of the employers to pursue tripartite dialogue and to come up with solutions to the problems raised. He invited all the social partners to participate constructively in the whole process and to give up their sectoral positions, which were not conducive to finding solutions to the problems and obstructed fluid and effective social dialogue. He recognized that of the many problems faced by the people of Guatemala, one was to create decent work and sustainable companies, which was the only way of generating wealth and tackling the problem of informal employment. He emphasized the need to continue the fight against corruption and to guarantee the effective application of the Labour and Penal Codes by the Supreme Court of Justice and the Office of the Public Prosecutor. National authorities were striving to strengthening solutions through dialogue with a view to creating jobs under decent conditions. In conclusion, he was aware that solutions needed to be found and hoped that they could be achieved in the medium term. He urged the Committee to contribute to the national efforts that were being made and recalled once again the important progress that had already been made.

The Government member of Colombia, speaking on behalf of the Government members of the Committee which were members of the Group of Latin American and Caribbean Countries (GRULAC), acknowledged the Government’s efforts to take practical steps on labour matters and particularly the adoption of a Decent Work Programme 2012–15 and its implementation plan, with the objectives of promoting and complying with fundamental labour standards, improving the judicial system, respecting freedom of association and collective bargaining and taking action against impunity. She highlighted the high-level mission that had taken place in February 2013 and the Memorandum of Understanding on the application of the Convention signed in March 2013. In that regard, she drew attention to the measures that the Government had taken since the adoption of the Memorandum, particularly the launching of a tripartite dialogue process with a timescale and programme for implementation. She also emphasized the progress made by the Office on measures to establish high-level tripartite representation, as agreed in the Memorandum. She expressed the hope that the Government and the social partners would continue taking action to apply the Memorandum, with ILO assistance, with a view to making progress in applying the Convention. In conclusion, she expressed concern at the simultaneous use of multiple mechanisms to deal with the same case, considering that such duplication could weaken the functioning of the ILO supervisory system.

An observer representing the International Trade Union Confederation (ITUC), referring to the murders of 58 trade unionists over the past six years, expressed regret that none of them had been solved and that the Government claimed that only two of them involved anti-union motives, despite the fact that investigations were still continuing. Seven workers had already been murdered in 2013. He referred to the situation of persecution, threats and harassment suffered by trade unionists and the dismantling of trade unions, giving specific examples from the maquila and public sectors. Despite the fact that the judicial authorities had ordered protection measures for union leaders and members, they had yet to be taken. He hoped that the Memorandum of Understanding might be the first step towards solving the country’s problems, highlighted the commitment of trade union confederations to the Memorandum and expressed regret that it had not been signed by the employers. Guatemala had been declared the most dangerous country in the world for trade unionists. The Government therefore needed to demonstrate that it was taking real action on the issue.

The Government member of the United States referred to the enforcement plan agreed with Guatemala to solve the concerns raised in a labour case brought by the United States against the Government under the CAFTA–DR. The enforcement plan consisted of 18 concrete actions to improve enforcement of labour laws to be implemented within specific time frames. She said that, if fully implemented, it would address some of the same issues dealt with by the Committee of Experts, the Committee on Freedom of Association and the Conference Committee. She also referred to the recently signed Memorandum of Understanding and her Government was encouraged that the Guatemalan Government had acknowledged the challenges it faced in effectively enforcing its labour laws and protecting workers’ rights, and looked forward to their continued collaboration to address labour right concerns. However, she expressed deep concern at the continuing violence against trade unionists, the high levels of impunity and the on-going challenges in the criminal justice system. The Government of Guatemala was urged to fulfil its commitments within the established time frames under both the enforcement plan and the Memorandum of Understanding and to ensure as soon as possible the conformity of national law and practice with the Convention. Her Government was prepared to work closely with the Government of Guatemala in taking the concrete and sustainable measures required in this regard and urged the Government to make full use of ILO technical assistance and advice and to actively involve the social partners to ensure full respect for freedom of association for all workers in Guatemala, a right that in too many instances had been denied to Guatemalan workers for a very long time.

The Employer member of Honduras stated that, in the light of the developments that had taken place in the country, it was not necessary to examine the case before this Committee. The Government should be given time to implement the measures it had pledged to take. The Governing Body would examine the report of the country mission, which contained information on the Government’s achievements that clearly indicated its desire to solve the problems. The violence in the country was general in nature and the Government and the employers recognized the need to take measures in that regard.

The Employer member of Mexico stated that the examination of a single case by several bodies went against the principle of judicial safety and proposed that this Committee should not examine the matters covered by the complaint submitted under article 26 of the Constitution. He emphasized that the problems presented were being addressed at the national level within the framework of the Tripartite Commission, which demonstrated the increase in social dialogue. It was also important to highlight the re-establishment of the Office of the Special Prosecutor to investigate crimes against trade unionists. He hoped that the work of the Tripartite Commission would help to determine the real causes of the violence and whether it was directed particularly against unionists.

An observer representing Public Services International (PSI) expressed deep concern at the situation of impunity and violence against trade unions in Guatemala. The anti-union culture was frequently demonstrated and had recently become more serious. Trade unionists were threatened, attacked and murdered. She referred to the murders of Ms Kira Henríquez and Ms Santa Alvarado and stressed that women trade unionists were also victims of violence. She called for an end to the rise in violence and for fundamental principles at work and human rights to be observed. Social dialogue had to be re-established in a climate of social justice. Lastly, she referred to the difficult situation of public employees, in particular those performing special or temporary assignments who, even if they were in permanent posts, did not receive equal wages or enjoy the same social security coverage. High-quality public services were essential to the existence of social dialogue in the country.

The Worker member of the United States recalled that, under the terms of the CAFTA–DR, Guatemala was required to comply with its obligations as a member of the ILO, including the obligation to recognize and protect the rights set out in Convention No. 87 and other ILO standards. In 2008, unions from Guatemala and the United States had filed a petition calling for the investigation of labour abuses under the labour chapter of the CAFTA–DR. He added that the ILO supervisory bodies played a vital role in the supervision of those standards, which were becoming increasingly important as they were used in the binational and multilateral agreements that were key to international trade and industrial relations in multinational companies. After reviewing the petition, the United States Government in 2009 had reported finding significant weaknesses in labour law enforcement in Guatemala and, following the holding of consultations, had requested the establishment of an arbitral panel in 2011. However, despite the repeated failure of the Government to take sufficient action to remedy the continuous and systematic failure to protect fundamental workers’ rights, it had been granted yet another reprieve in April 2013, when the United States had suspended the arbitral panel and negotiated a comprehensive enforcement plan with the Government. Since the filing of the petition, over 50 trade unionists had been killed in Guatemala and there were many doubts that another action plan would bring about real changes in law and practice, or the allocation of sufficient resources to improve compliance with the Convention. Moreover, although ambitious, there were numerous shortcomings in the plan, which failed to take into account the critical needs expressed by Guatemalan workers. The shortcomings included the failure to address union registration, including the 45-day deadline set out in the Labour Code, the question of impunity for violations of labour law, as well as illegal subcontracting, the non-payment of social security contributions, widespread minimum wage violations, factory closures and the accurate legal registration of factory ownership and assets. Nevertheless, despite the many criticisms, the commitments made would be taken very seriously by the trade union movement, with particular regard to the provisions on transparency and tripartite coordination for enforcement, which explicitly referred to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). In conclusion, he emphasized that the enforcement component of the plan needed to include the real possibility of returning to the CAFTA–DR labour dispute mechanism for violations of labour rights before the next session of the Conference.

The Worker member of Spain, also speaking on behalf of the Worker members of Belgium, France, Greece, Italy, Portugal and Sweden, commended all the workers and members of the general public who risked their lives every day to uphold the rule of law in Guatemala, a country which was incapable of guaranteeing the right to life. Carlos Castresana, the former head of the CICIG, had described the Guatemalan authorities as a patient who was refusing to take the recommended medicine to solve the serious problems of insecurity and injustice that were destroying the country. That diagnosis was particularly apt in labour matters. Guatemala had not respected the principle of good faith in relation to international treaties, as could be seen from its repeated violations of the fundamental Conventions. The following restrictions still applied with regard to Conventions Nos 87 and 98: the restriction on the freedom to form organizations; delays in registration or the refusal of registration; restrictions on the right to elect union leaders in full freedom, including the requirement for them to be of Guatemalan origin; restrictions on the right of trade unions to carry out their activities freely, including the possibility of imposing compulsory arbitration, among other sectors, in public transport, and the imposition of penalties, including criminal sanctions, in the event of a strike by public servants or workers in certain enterprises; the denial of trade unions’ rights in practice for numerous public sector workers engaged under contracts under budget item 029; deliberate delays in reinstating dismissed trade unionists; and restrictions on freedom of association and collective bargaining in the maquila sector. He regretted that no progress had been made on the repeated and long-standing calls for reform in the country. The significant restrictions outlined above were compounded by the climate of extreme anti-union violence, the ineffective justice system and the failure to protect trade unionists, which made exercising the right to freedom of association much more dramatic. Although violence was widespread across the country, the denial of the anti-union nature of most murders of trade union leaders was a smokescreen to hide the obvious: the existence of an institutionalized anti-union culture that did not baulk at murdering trade unionists to instil terror and fear in those exercising trade union rights. In Guatemala, whatever attempts were made to pass off the murders of trade unionists as ordinary crimes resulting from the situation of general insecurity, the State was still responsible for its own lack of diligence in investigating the facts and for failing to prevent such incidents from occurring. In other words, it was responsible for its failure to fulfil its duty to guarantee trade unionists the right to life.

The Worker member of Colombia said that the situation of the violation of human and trade union rights in Guatemala had existed for years and, despite the efforts of the trade union movement to avoid elimination, it had proved impossible to resolve. Indeed, on the contrary, there had been a constant increase in acts of violence in the form of murders, threats and harassment, which meant that the exercise of trade union activities in Guatemala had become the most dangerous of occupations, paid for in life, with such violence becoming more widespread in Latin America. The Committee of Experts had repeatedly asked the Government to take prompt and effective action to ensure the full observance of human and trade union rights, and especially that murder cases should be investigated and the perpetrators prosecuted and punished in accordance with the law. But since no such action had been taken in practice, the number of trade union leaders who had been murdered since 2007 now stood at 58, and those responsible for such appalling crimes had not been identified. Impunity reigned in Guatemala, and the Government showed absolute indifference to the fate of trade unionists. The results spoke for themselves: to date, nobody had been tried or even charged for the crimes, despite grave suspicions against certain persons as the instigators of the murders. The prevailing situation of impunity was very serious, as it paved the way for other murders, with criminals being fully aware that they could go calmly about their business, as there were no authorities or judges ready to prosecute, arrest or convict them. He added that some individuals who had been prosecuted and convicted for such crimes against humanity had subsequently had their convictions overturned and were now at liberty. Responsibility had also been ascribed to others to conceal the identity of the true perpetrators of the crimes. The impunity rate was virtually 100 per cent, with the aggravating circumstance that there was deliberate intent on the part of certain government officials to distort the true motives for the killings, claiming grounds other than trade union activity for the deaths, which was a further violation since, in addition to the loss of their lives, it stripped the victims, and also their families and colleagues, of their honour and dignity. The ILO now had a major responsibility to determine the appropriate measures to help put an end to such a grave situation of violence against the trade union movement, since such deeds were a continuation of what had been happening elsewhere in Latin America, including in his own country, Colombia. Wherever that occurred, there was a lack of democracy and social justice.

The Worker member of Brazil said that in Latin America even the most progressive governments were overlooking the fact that the Government of Guatemala was allowing its trade union leaders to be murdered. There was a popular saying that silence implied consent. To bring an end to the killings of trade union leaders, agreement was needed between governments to establish an observatory and to follow up violations of trade unions rights, and particularly murders. In the midst of this barbary, the ITUC had promoted an agreement with the Government of Guatemala to bring an end to the murder of trade union leaders once and for all, and also to restore trade union rights and strengthen labour rights. He called on all governments and countries to open their eyes to the murders and to halt the genocide of workers and their organizations. They needed to help the Government of Guatemala to maintain stability and defend the right to life and safety of trade union leaders and their organizations. Everyone should join in that effort.

An observer representing the International Organisation of Employers (IOE) emphasized the importance of the Conference Committee taking into account the processes that were under way in Guatemala to improve the situation, as well as the existing cooperation programmes. The Memorandum of Understanding concluded between the Government of Guatemala and the President of the Workers’ group, in parallel to a session of the Governing Body, demonstrated a willingness that should be appreciated. Formal issues appeared to be preventing the adhesion of the Employers’ group to the agreement, but it was prepared to collaborate actively in its development. That willingness did not deny or mask the gravity of the issues of violence, which required urgent investigation, within a climate of generalized violence in certain areas of the country. The employers were aware of that and wished to show their active commitment to improving the situation in Guatemala. The ILO supervisory system needed to promote effectively the achievement of progress and the active involvement of the Government and the social partners. That was important not only in relation to the examination of the present case, but also its content. That commitment would need to be taken into account in future if significant progress was achieved.

The Government representative emphasized the notion of process that pervaded the current debate. His country had for many years been experiencing a situation that could be characterized as a sustained process of omission in the construction of democratic institutions capable of ensuring legality and the rule of law in Guatemala. Over the previous 15 months, under the Government of President Otto Pérez Molina, there had been a sustained and substantive effort to build democratic institutions that guaranteed the full realization of the rights of Guatemalans, the right to life, to physical integrity and to public freedoms, such as the right to freedom of association. Since taking office, the Government of Guatemala had been making substantial budgetary changes to strengthen two institutions and send a clear message of political will: it had increased the budget of the Ministry of Labour by 36 per cent and that of the Office of the Public Prosecutor by over 20 per cent, and was spearheading the process of strengthening institutions and reinforcing labour inspection services. That was of the utmost importance, as labour inspection was one of the democratic institutions that had never been established in Guatemala with the clear intention of ensuring compliance with the rights of all Guatemalans in every corner of the country. By the end of 2012, the Ministry of Labour had executed 98.4 per cent of its budget, having hired 100 new inspectors, which had increased the Ministry’s staff by 40 per cent; it had strengthened its coverage to the whole of the country; there had been a paradigm shift in inspection from conciliation to inspection visits and now, from 600 visits a year up to 2011, its capacity had increased to 3,300 company inspections to monitor compliance with fundamental rights.

There had been a strong and clear commitment to social dialogue, to call things by their name and to recognize leadership by trade unions and employers in both law and practice. All matters of national importance were discussed in the Tripartite Committee for International Labour Affairs, where all the people of Guatemala were represented. There was a compelling need to adopt measures in Guatemala on many issues, but it was important to allow time for social dialogue to run its course in order to fulfil commitments in the long term and in a sustainable manner. There had clearly been a policy of institutional strengthening. The process included reinforcing the national police, improving the professionalism of its officers and ensuring clarity in the dialogue between the security forces and the leaders of the various trade union federations and confederations. The foundations were being laid for the active participation of the trade union movement and employers in the examination and elucidation of cases. The Memorandum of Understanding signed in the ILO between the Government of Guatemala and the Workers’ group was an unusual event, unprecedented in the history of the Organization in terms of the resolution of serious conflicts that had occurred in many countries. But the seeds had been sown during the meeting at the Davos Summit between the President of Guatemala, the ILO Director-General and the Secretary-General of the ITUC. He emphasized the personal commitment of the President to seeking clear, alternative, immediate and focused solutions to the problems in Guatemala, as well as his political will and the momentum he had brought to the negotiations to resolve the dispute with the United States in the context of CAFTA–DR. The impetus of the negotiations and the Government’s involvement had made it possible for a negative situation to be transformed into a process of dialogue helping to lay the foundations of action for solving the problems of Guatemala. In conclusion, he emphasized that without democratic institutions, it was impossible to secure compliance with standards by States. In so far as they built democratic institutions with the participation of all the social partners, they could guarantee that they were moving in the direction of discharging the responsibilities of the State. Like all Latin American countries, and the employers and workers, his Government totally repudiated the terrible violence that afflicted his country, rejected impunity and wished to work towards its eradication. The Guatemalan delegation to the Conference included judges from the Supreme Court of Justice and the President of the Labour Commission of the National Congress, so that the three branches of government were represented in the room, demonstrating the intention to work intensively to resolve the situation. He was sure that, with the ILO’s support and the participation of the social partners, good results would be achieved within the planned time frames.

The Worker members said that all the necessary measures should be taken urgently to guarantee full respect for the right to life, civil liberties and freedom of association and to bring an end to the climate of violence and impunity in the country in view of the difficult situation experienced daily by workers, trade unionists and the people of Guatemala. The Memorandum of Understanding, signed in March 2013, was already a positive step and the Committee should encourage the process launched by the Governing Body. Expressing regret that the employers of Guatemala had not signed the Memorandum, the Worker members urged them to do so as soon as possible, in the firm hope that the Government would honour its commitment to take specific action without delay to apply the Convention in full in both law and practice. In conclusion, the Worker members hoped that the Committee’s conclusions would refer to the current process and that the Committee of Experts would be able to note significant progress at its next session.

The Employer members expressed concern at the generalized climate of violence affecting the freedom of workers’ and employers’ organizations to pursue their activities. They condemned all acts of violence, whatever their origin. They therefore considered it necessary for the independent judicial authorities in Guatemala to identify the real causes behind the violence and its relation to freedom of association. It was urgent for the Government and public institutions to harness their efforts to that end. They said that social dialogue, through the National Tripartite Commission and the Economic and Social Council, would enable solutions to be found to labour issues. They took note with interest of the Memorandum of Understanding signed in March 2013 by the Government of Guatemala and the Workers’ group of the Governing Body and hoped that the issues that it covered would be addressed fully, with ILO assistance. They also hoped that the high-level tripartite representation would be established in the country soon and that the Office would be informed of the conclusions reached and the progress made, so that they could be included in the next report of the Committee of Experts. They considered that the coordinated work of the supervisory bodies and the Government would allow light to be shed on the murders and acts of violence referred to in the report. They emphasized that it was for the Governing Body to deal with matters relating to complaints submitted to the Committee on Freedom of Association and the complaint presented the previous year under article 26 of the Constitution. The Conference Committee should therefore await the decisions taken in that regard. On the issue of legislation, they reiterated the position they had stated the previous year concerning the provisions of Convention No. 87. They firmly believed that the right to strike was neither contained in, nor recognized by the Convention, as they had fully explained to the Committee of Experts in a communication dated 29 August 2012. Finally, they emphasized that the current Government of Guatemala had shown its full willingness to find solutions with ILO technical support and that results were starting to be seen in terms of tripartite social dialogue, trade union registration, the involvement of public institutions in the protection of trade unionists, the reduction in the length of legal proceedings, and particularly in solving the crimes committed. They also emphasized the increase in the budget of the Ministry of Labour to strengthen labour inspection, and the personal commitment of the President of Guatemala.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

The Government provided the following written information.

The Government again reiterates its commitment to the protection and promotion of freedom of association and underlines the absolute priority that must be given to protecting the life and physical safety of all the people of Guatemala, particularly trade unionists. Accordingly, it wishes to point out that measures have repeatedly been taken to combat the widespread violence in the country. Despite the fact that this is a difficult phase in Guatemala’s history, progress has been made in the application of justice as a whole, due to the combined efforts of all institutions involved in the administration of justice.

As an expression of the Government’s desire to give special attention to labour relations, the Inter-Institutional Committee on Labour Relations in Guatemala – which comprises the Ministry of Labour and Social Welfare, the Ministry of Economy and the External Relations, which currently also includes the Ministry of the Interior, each within their respective jurisdictions and without prejudice to the autonomy and independence of the President of the Judiciary, the Attorney-General and Public Prosecutor – met 18 times in the past year. At these meetings the Committee discussed the country’s labour problems, as a result of which it was able to draw up a “road map” with dates and specific activities that the Government of Guatemala is carrying out in order to strengthen the implementation enforcement of labour laws, in conjunction with the judiciary and the Office of the Attorney-General.

In this context, the Government wishes to state most vigorously that it does not tolerate or encourage any threats to, or assaults on, the physical safety or life of Guatemalan citizens, particularly trade unionists, or attacks on trade union premises, inasmuch as it is the duty of the State to safeguard private property as an inherent human right. The Government fulfils its obligation to investigate acts of violence and/or offences relating to private property. In order to improve the investigation of offences committed against trade unionists, the Inter-Institutional Committee on Labour Relations in Guatemala and the Tripartite Committee on International Labour Affairs have requested that the responsible unit be strengthened.

The Government is pleased to state that the Office of the Prosecutor-General has been restructured and, under Agreement No. 49-2011 of 20 May 2011 to amend Agreement No. 37-2010 containing the regulations governing the structure and functioning of the Human Rights Department of the Prosecutor’s Office, it has established a Special Prosecutor’s Office to investigate offences against trade unionists. These changes will appear in the Prosecutor-General’s classification of posts and salaries.

The Supreme Court of Justice has also made important changes in the way it operates, specifically with regard to labour issues, for which a new management model has been adopted that seeks to separate administrative from judicial functions, in order to focus expert resources on judicial matters and assign administrative matters to appropriately trained staff. All labour courts are accordingly now housed in a single building, which will streamline and expedite the services provided. The measures described above call for close coordination between the institutions responsible for administering justice, so as to cover every aspect of the protection of workers’ rights.

The Constitutional Court, which is a permanent court with its own jurisdiction, whose essential function is to uphold the constitutional order and which acts independently of other state bodies in order to guarantee the rights of the people of Guatemala, has handed down the following rulings with respect to the application of procedural law and labour law:

– Appeals to maintain workers’ rights (amparos): If for any reason during the processing of such appeals a case could not proceed or if it could be declared irreceivable because the correct formalities were not observed or because of a procedural irregularity, the Constitutional Court has ruled that, in particularly relevant cases in which specific rights are discussed (existence of an employment contract, justified or wrongful dismissal, entitlement to payment of outstanding wages, etc.), the appeal interrupts the statute of limitations as it might pertain to a given right – generally with respect to workers’ rights. Those concerned can thus initiate ordinary legal proceedings without regard to the statute of limitations.

– Restrictions on the right to appeal: The Constitutional Court has determined that litigants in legal proceedings with specific appeals procedures may not have recourse to other appeals procedures. In accordance with section 365 of the Labour Code, under the principle of “special jurisdiction” an appeal may only be lodged against a final judgment setting aside a case or pronouncing a verdict. No appeal is admissible if it does not fulfil one of these conditions.

– Precedence given to worker’s claims (amparos laborales): Under the authority conferred on it by the Habeas Corpus Act (Ley de Amparo, Exhibición Personal y Constitucionalidad), the Constitutional Court has amended Agreement 4-89 to the effect that appeals for protection under the Constitution can no longer hinder the course of ordinary court actions. There were two key amendments that should be highlighted under this new legislation. First, the Agreement expressly stipulates that, so long as provisional protection of the courts has not been officially decreed by the Constitutional Court, ordinary court proceedings must follow their normal course. This modifies previous practice whereby courts of law would suspend proceedings whenever any of their rulings was challenged on grounds of infringement of constitutional rights. The second amendment concerns requests for protection by the court also at the appellate level and that such requests must be substantiated. This is to avoid simple appeals, which in the past tended to be lodged mechanically and systematically merely to hold up the proceedings. By requiring that full grounds be submitted, the Constitutional Court’s role, other than that of examining the appeal in detail to determine whether there is any irregularity from the constitutional standpoint, is limited to considering the case that is placed before it.

These rulings of the Constitutional Court are legally binding and apply to all legal proceedings initiated by workers, which constitutes significant progress in the defence of labour rights. Pursuing its systematic and integrated approach, and in order to strengthen the enforcement of labour legislation in the country, the Government has signed an Inter-Institutional Framework Agreement for the Exchange of Information between the Ministry of Economy and the Ministry of Labour and Social Welfare (Decree 29-89 of the Guatemalan Congress), whereby the general labour inspectorate keeps a single centralized registry (part of the Integrated Labour System) of all entities entitled to the benefits conferred under the aforementioned Decree 29-89 for the Development of Export Processing Zones (maquilas). As a result, it is now possible to cross-check the information that is used in the labour inspectorate’s enforcement of labour laws. This is reinforced by the Directorate of Trade and Investment Services of the Ministry of Economy which, through its Industrial Policy Department, verifies that enterprises make proper use of the benefits to which they are entitled. The State of Guatemala thus complies with the legislation in force by establishing an efficient mechanism for the Ministry of Economy to carry out its supervisory activities, in coordination with the Ministry of Labour and Social Welfare and for the greater benefit of the workers.

The Government emphasizes that the legitimacy of the Tripartite Committee on International Labour Affairs and of its members, as well as the representativity of workers’ organizations, can be established only through the Labour Register of the General Labour Directorate of the Ministry of Labour and Social Welfare, with which they are required to update their registration each year. Otherwise, not only do they have no legal personality but it is impossible for them to establish their representativity. The Government’s invitation to the employers’ and workers’ sectors to be part of the Tripartite Committee on International Labour Affairs was published at the end of 2010 in the most widely read newspaper in the country so that all organizations that wished to participate could do so.

Regarding the amendments that are needed for Guatemala’s legislation to comply with the international labour Conventions that it has ratified, a committee is to be appointed under an agreement currently being drafted by the General Secretariat of the Presidential Office to study how the labour legislation needs to be amended to fulfil the obligations deriving from ILO Conventions ratified by Guatemala, along with other commitments entered into within the framework of Chapter XVI of the Dominican Republic–Central America – United States Free Trade Agreement (DR–CAFTA).

In order to guarantee that the general labour inspectorate can carry out its activities in places of work without hindrance, the Ministry of Labour and Social Welfare, by virtue of Ministerial Agreement No. 42.2011, has laid down the procedure to be followed if the labour inspectors encounter opposition.

Finally, the Government draws attention to the fact that it has made a considerable effort to improve labour justice in the country, and that in the past two years much has been done to establish the basis for far-reaching changes in the implementation of Guatemala’s labour legislation.

In addition, before the Committee, a Government representative reported on initiatives and progress made in the country in the area of labour since the last session of the Conference. In follow-up to the conclusions reached by the Committee on that occasion, the Government had received a visit from Dr Alfonso Valdivieso, accompanied by ILO officials, from 9 to 13 May 2011. The members of the mission had been received by the Ministry of Labour and Social Welfare, the Labour Committee of the Congress of the Republic, the Attorney-General and the Public Prosecutor, the Supreme Court of Justice, the International Commission against Impunity in Guatemala (CICIG), and the Constitutional Court. His Government was willing to address the recommendations of the mission.

With regard to the observation of the Committee of Experts and the cases pending with the Attorney-General’s Office, the Office of the Public Prosecutor had undergone internal reorganization, having issued an agreement reforming the regulations on the organization and operation of the human rights section of the Office of the Attorney-General, and a special prosecution unit was being created for crimes against trade unionists. On the issue of legislation, the President of the Republic had created a presidential commission to study labour legislation reform in order to implement obligations arising from ratified ILO Conventions, which brought together the Minister of Labour and Social Welfare, the Minister of the Economy and the Minister of External Relations. With regard to trade union membership rates and the very small number of collective agreements, it must be recalled that, in accordance with the Convention, the Minister of Labour and Social Welfare was legally prevented from doing anything about the low level of unionization and had therefore refrained from taking action. Furthermore, the Labour Code provided that the Minister of Labour and Social Welfare should formulate and implement a national policy to protect and develop trade unionism, as evidenced by the fact that, in 2011, 46 trade unions had been registered and, in November 2010, the first collective agreement on working conditions had been signed between the National League against Cancer and its trade union.

With regard to the exercise of trade union rights in practice at maquilas (export processing zones), the speaker indicated that the Government had accepted technical assistance from the Office to deal with the issue and to study the recommendations made. The Government had prepared an Inter-institutional Framework Agreement for the Exchange of Information between the Ministry of the Economy and the Ministry of Labour and Social Welfare, and the Inspectorate-General of Labour maintained a single centralized register of all trading enterprises eligible to benefit from the Act to foster and develop export and maquila activities. Since the framework agreement had entered into force, the Ministry of Labour had inspected 747 registered export companies and had established that 20 enterprises were failing to comply with labour legislation, of which 11 had rectified the situation, four had had their tax benefits revoked, and the rest were still being investigated.

With regard to labour inspection, a permanent programme of training for labour inspectors had been introduced at the national level, with support from the United States Department of Labour and from the ILO. A first national meeting of labour inspectors and health and safety officials had been held, in which 90 per cent of labour inspectors had taken part. Training had also been enhanced as regards the introduction and use of inspection protocols and in best practices in the use of the electronic case system. The Government of Canada had also supported the training labour inspectors in Guatemala through the “Real Card” project. Lastly, the Ministry of Labour and Social Welfare had published a ministerial agreement strengthening the role of labour inspectors to avoid that they encounter obstacles when inspecting enterprises in all productive sectors within the country. With regard to the registration of trade unions, workers’ organizations had been asked to update their details as required by law in order to provide legal certainty for their activities. With respect to the registration of the Trade Union Confederation of Guatemala (UNSITRAGUA), the Government had provided the mission with a document fully clarifying the Union’s legal status. The speaker concluded by stating that the Government of Guatemala was displaying political will, as a result of which various initiatives had been strengthened and were starting to bear fruit. It was receiving invaluable assistance from the Governments of the United States, Canada and Spain, the European Union, and the Office, to all of which it expressed its deep appreciation.

Another Government representative, magistrate of the Supreme Court of Justice, indicated, with reference to judicial issues, that the programme “Zero tolerance for corruption, peddling of influence and impunity” had been launched and that the labour courts created to overcome the backlog of labour cases were fully operational. A specific unit with the capacity to monitor and follow the progress of labour procedures had been established allowing matters to be expedited and the guidance and information provided to those concerned. A computerized system allowing judges to take action of their own initiative in the case of non-execution of sentences and reinstatement orders, had also been established. Over a period of 19 months, the Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio) had overcome a backlog of over 1,400 labour cases. That was being achieved, inter alia, with the assistance of the United States Agency for International Development. Moreover, a labour inspection office was operating in the same building to provide on-the-spot guidance to users on labour and procedural issues, thereby facilitating access to information and justice. That had also strengthened the State’s inter-institutional links.

With regard to the measures taken by the Supreme Court of Justice, she indicated that the Criminal Chamber had adopted measures relating to the access to legal assistance for victims, the coordination of inter-institutional action and collaboration with civil society. Coordination mechanisms had been established between the judicial authorities and a series of victim support institutions, through the operation of a programme combining municipal victim support bodies, as well as judicial facilitators trained and supported by the judicial authorities. Magistrates and prosecutors in the courts in criminal matters were particularly vulnerable to threats and other forms of coercion. The ordinary criminal courts were not adapted to cope with that and special criminal tribunals had been created to hear cases involving higher risk crimes and to respond more effectively to the generalized situation of violence which existed in the country. That was a response by the Supreme Court of Justice to the situation of impunity.

With regard to crimes against trade unionists, she indicated that every effort was being made to ensure that they were duly investigated and brought to justice. The possibility was envisaged of entrusting one of the existing criminal tribunals with the specific function of hearing cases of crimes against trade unionists, in view of the specificity of the victims, through the training of magistrates and auxiliary personnel to raise their awareness of the role of trade unions in the country. She also referred to the measures adopted in relation to working women. Since November 2010, six judicial instances had been in operation specializing in the murder and violence against women, including women workers for violence at the workplace. These measures had been made possible through the support of the United States Embassy, Spanish cooperation and the United Nations Population Fund. In conclusion, she thanked the governments, international organizations and civil society which had made it possible to improve the judicial system in the country.

The Employer members emphasized that it was a recurring case which was well known in the Committee since it had been discussed on at least 15 occasions, the last of which had been in 2010. This year it also came with a specific request from the Committee of Experts that the Government should submit further information at the Conference. Since 2001, violence had become increasingly widespread in the country as a result of the growth in drug trafficking and its impact on the exercise of freedom of association, and that had concealed or obscured some progress which could have been noted previously in relation to legislative changes. The observations of the Committee of Experts dealt with the situation of violence against trade unionists, on the one hand, and with the legislative changes that ensured the free establishment and operation of trade unions, on the other. The information supplied by various organizations was a source of concern for all parties. It should be emphasized that technical assistance had been provided by the ILO on numerous occasions aimed at supporting change in the regulatory framework, even though some major issues were still unresolved. In view of the gravity and urgency of the issue, the speaker emphasized that he would focus on the situation of widespread violence, which showed no signs of changing for the better. With a view to improving the situation, a number of direct contacts and high-level missions had visited the country. The Government had made an undertaking to draw up a roadmap to eliminate the violence, which had sought, unsuccessfully, to achieve agreement among the parties in the context of social dialogue. In June 2010, the Government had also agreed to the visit of an important international dignitary, accompanied by ILO officials, and that had gone ahead recently with the visit of Mr Valdivieso.

The Employer members stated that the measures that called for the elimination of acts of violence could be divided into two categories. The aim of the first category was to strengthen the institutions responsible for ensuring effective respect for freedom of association in practice. Guatemala was a developing country, still poor compared with other countries in the region, where the situation of violence appeared to be aggravated by significant institutional weakness which needed to be rectified. Both the roadmap and the repeated requests by the Committee of Experts and this Committee stressed the need to: increase budgetary allocations and reinforce the Office of the Public Prosecutor; increase the number of magistrates, inspectors and staff of the Ministry of Labour and Social Welfare; strengthen relations between the institutions; expedite proceedings in criminal and labour law cases relating to freedom of association; boost resources for increasing protection for trade unionists and their families and for witnesses who had been assaulted or threatened; and enforce sentences that have been passed by the courts. The second category of measures concerned the data and information relating to the evaluation of actions undertaken to analyse developments regarding this phenomenon.

In 2010, the Employer members had vigorously expressed their concern and the Government had been requested to demonstrate its political will by sufficient action to make the issue a priority, especially through budgetary allocations, the enforcement of court sentences and improved resources for the judiciary and administration. The Committee of Experts found no evidence of sufficient progress made, or at least regretted that the report submitted did not include information on strengthening of the institutions or evaluation of the progress made. They therefore voiced much greater concern than in previous years, and that was certainly the reason for requesting further information at the present session of the Conference. A worsening of the situation was also noted, especially in view of the conclusions of the Committee on Freedom of Association in 2009 and 2010.

The Employer members welcomed the information supplied by the Government and the magistrates of the Supreme Court of Justice in relation to the training of judges, the number of trade unions and the restructuring of the judiciary. However, that information was insufficient since it was also supposed to cover developments in the situation regarding the acts of violence. The investigation was important and should enable a clear definition of violent acts which took place in a context of widespread violence and those which resulted from measures taken specifically against trade unions. Serious violence had occurred resulting in the death of employers, in the very exercise of freedom of enterprises and right to collective bargaining. The Government had demonstrated goodwill through the acceptance of various high-level, direct contacts and technical assistance missions, and through its regular submission of reports. But goodwill was insufficient. In addition, the budget limitations resulting from a very fragile economic situation were not incompatible with priority and urgent actions in that sphere. The dialogue with the Government and the cooperation with this Committee and the Committee of Experts should be preserved as the best instrument for guaranteeing basic labour rights. Nothing should be allowed to weaken the capacity for investment and economic development in the country, since that was crucial for the strengthening of the institutions that would enable effect to be given to the obligations established by the Convention.

The Worker members recalled the statements they had made to the Committee, at the June 2010 Session of the Conference, with regard to the acts of violence against trade unionists in Guatemala, the legislative difficulties involved in implementing Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the matter of judicial impunity. At the time, they had presented very specific conclusions aimed at guaranteeing the full and comprehensive exercise of freedom of association as part of the strengthening of democracy in Guatemala and had expressed their strong desire that the Committee’s conclusions be included in a special paragraph of its report so as to draw attention to the contempt with which the country had treated Convention No. 87 since at least 1991. Their view had not prevailed, however, and after a highly animated discussion the Committee had opted to follow the proposal of the Employer members requesting the Government “to accept the possibility of the visit of an important international public figure, accompanied by the ILO at a high level, to examine these matters and make recommendations”. Out of respect for the ILO, the Worker members had gone along with the proposal. Yet, what new developments had there been in 2011 with regard to the conclusions adopted in 2010? Until the statement that had just been heard from the Government representative, the matter of the visit by an international public figure had not been clear; in any case it was the Government itself that had chosen the person that suited it best. At its previous session, the Committee of Experts had had very little legislative or factual information on the situation in the country at its disposal, whereas the Government had been supposed to communicate a detailed report in 2010 on tangible progress on all the points raised by this Committee. The Worker members had rejected any suggestion that the Committee of Experts be held to account for basing its comments solely on the documents in its possession and had emphasized that those comments reflected a strictly literal interpretation of the Convention. It was obvious from the information obtained from all sides that nothing had changed and that the Government’s lack of political will reflected its contempt for the workers. Legislative texts might be amended, but the same could not be said of their enforcement. The reality behind the situation was plainly economic greed.

The Worker members also noted the high-level mission that had taken place from 9 to 14 May 2011 and that the Government had, on 1 October 2010, requested ILO technical assistance to clarify the matter of UNISITRAGUA’s registration as a trade union. They recalled the tripartite mission that had visited the country in February 2009, during which the members of the mission representing workers had sensed a total lack of consideration on the part of the Government. That nothing had changed since the 2009 high-level mission was all too clear from the conclusions adopted by the Committee in 2010: the worsening of the situation of violence and impunity, insufficient political will to take action to combat violence against trade union leaders and members and to combat impunity, the urgent need to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunal, and the need to take measures to strengthen social dialogue, redefine the representation bodies and guarantee access for workers’ representatives that had been freely elected by the organizations existing in the country, in accordance with the comments of the supervisory bodies.

The high-level mission that had taken place in May 2011 was supposed to clarify those four points. In its report the mission had begun by recalling the staggering number of union leaders and trade unionists who had been murdered or whose lives had been threatened since 2007. It had referred to the generalized climate of violence and to the very limited resources employed by the judiciary to eradicate violence and restore the rule of law. It had also raised the legislative problems that were regularly mentioned by the ILO supervisory bodies, drawing attention especially to the provisions of Guatemala’s Labour Code that were in contradiction with Convention No. 87. The high-level mission had expressed its deep regret that, since the previous year, there had been no progress in the reforms called for by the Committee of Experts and that the Tripartite Commission on Labour Affairs had not presented a single Bill to Congress. While noting the arguments advanced by the Guatemalan authorities with regard to the progress made in the coverage of collective agreements in maquilas, the mission had expressed its doubts on the subject given the extremely low level of union membership in those areas, which it had been able to verify through its contacts with the union federations. In addition, it had asserted that it was urgent that the Trade Unions’ Unity of Guatemala (CUSG), the General Confederation of Workers of Guatemala (CGTG) and UNISATRAGUA take part in the activities of the Tripartite Commission on Labour Affairs, of which they were not members. The high-level mission added that a social dialogue institution that ignored such an essential part of the trade union movement could not adequately achieve its objectives. Finally, the mission’s report included its observations on the registration of trade unions, though there was no indication that the Government recognized that there was any need to envisage establishing a procedure for facilitating their registration. The one positive aspect was that the high-level mission had taken note of the creation of a bipartite working group within the Tripartite Commission on Labour Affairs, with the mandate to draw up a Bill on the establishment of an Economic and Social Council. If that Bill was not to be just for show, then it would certainly need the benefit of ILO technical assistance.

An observer of the International Trade Union Confederation (ITUC) stated that, for the past 57 years, the State had, under both military and civil regimes, been systematically violating Convention No. 87. There existed an unwritten policy against freedom of association that resulted in the Government having to appear before the Committee for 15 consecutive years. Despite a succession of high-level missions, direct contacts and technical assistance, the Committee of Experts was still calling on the Government to guarantee the protection of trade unionists facing death threats, to speed up judicial procedures and to investigate murders and other crimes against trade unionists so as to punish those responsible and to resolve the serious problem of judicial impunity for such crimes. During the high-level mission that visited the country in May 2011, the Minister of Labour and Social Welfare claimed that the trade unions’ accusations were unfounded and were just looking for confrontation. The speaker wondered whether the recent murder of union leaders, the systematic anti-union harassment, the mass dismissals of trade unionists, the refusal of employers to comply with court rulings in favour of trade unionists and the failure to investigate several murders were also just looking for confrontation. As the conclusions of the high-level mission showed, the situation continued to be delicate, serious and preoccupying.

The Employer member of Guatemala welcomed the visit of Mr Valdivieso as the head of the high-level mission entrusted with examining the issues that were pending. The speaker reiterated the willingness of the employers of Guatemala to promote the recommendations that were made and emphasized that he shared the concern of the mission regarding the acts of violence against trade unionists. Nevertheless, it was important to take into account the context in which such acts of violence were occurring, and the efforts made by the country to strengthen the rule of law. It was of vital interest to employers that acts of violence against trade unionists and employers were investigated, with a view to bringing those responsible to justice and identifying whether the causes of the crimes were linked to the professional activities of the victims. One of the figures that gave rise to concern was the number of violent deaths of employers, which had amounted to 28 in 2010.

Those concerns were shared by the judicial authorities and the magistrates of the Supreme Court of Justice were following the matter closely, resulting in the establishment of new labour courts. The Tripartite Commission on International Labour Affairs had been urging the Office of the Attorney-General of the Republic to strengthen investigations into these acts, while the executive authorities had also commenced the reinforcement of the general labour inspectorate. The employers of Guatemala would monitor, through the Board of the General Labour Inspectorate, that the process continued. More transparent procedures had been established for appointments to high-level positions with responsibility for justice and the work of the CICIG was a step in the right direction in combating the climate of impunity. Guatemala was a pioneer in the implementation of real concrete measures adapted to the actual situation, with the support of the international community, with a view to finding a solution to a problem that was threatening to spread throughout the region. It was not true to say that there existed a climate of anti-union violence, but rather that violence affected all sectors equally.

With regard to the need to adopt amendments to bring the national legislation into conformity with ILO Conventions, the speaker recalled the need to seek consensus in tripartite dialogue forums and reaffirmed the will of employers to achieve such agreements. He expressed disagreement with the Committee of Experts concerning the need to amend the legislation respecting the right to strike, which was not regulated by any ILO Conventions. He added that social dialogue was under threat due to the divisions among trade union leaders in the country.

He indicated that union membership and collective bargaining rates needed to be analysed in terms of the population engaged in the formal economy, rather than the whole of the economically active population. Moreover, the membership of representative organizations had fallen throughout the world, and Guatemala was no exception. Figures indicated that anti-union discrimination was practically non-existent in the maquila sector. There had been no unlawful closures as a result of the close collaboration between the private sector and the labour authorities. Finally, he emphasized the progress achieved in the application of justice and the contribution made by civil society to strengthening the rule of law, which was the only way of getting to the roots of the problems highlighted by the Committee of Experts that were difficult to resolve. Problems still remained, but progress was being made to guarantee the full exercise of rights for all citizens.

The Government member of Argentina, speaking on behalf of the Government members of the Committee which were members of the Group of Latin American and Caribbean countries (GRULAC), welcomed the information provided by the Government, the magistrates of the Supreme Court of Justice and the social partners. GRULAC noted that the active participation of the Government reflected the political will to resolve the challenges that the country faced in applying the Convention. The speaker welcomed the visit of Mr Valdivieso, accompanied by officials of the ILO, in compliance with the Committee’s 2010 conclusions. The mission’s recommendations should help the authorities to tackle the problems the Government faced. Guatemala needed the support of the ILO and the Committee’s supervisory mechanism should be used to help governments meet the commitments they entered into upon ratification of ILO Conventions. In conclusion, the speaker encouraged the Government and the Office to continue their efforts to ensure the full application of the Convention.

The Government member of Belgium, speaking also on behalf of the Government of Luxembourg, regretted having to repeat the statement he had made in 2010 and expressed his concern in its regard. The Government of Guatemala had, since 1991, been the subject of several observations by the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. The Guatemalan authorities must ensure freedom of association, in direct collaboration with the social partners and with the assistance of the ILO. He welcomed that a Tripartite National Commission for full implementation of the Convention, as well as a roadmap, had been established. The tripartite nature of that Commission must be preserved and if possible encouraged by an inclusive dialogue. Moreover, over the past three years, the number of violent deaths of trade unionists had increased dramatically, in a context of insecurity and increasing violence affecting the whole of the population. The Government of Guatemala must take measures to prevent harassment, persecution and assassination of trade unionists, and to combat impunity. The results of the investigations carried out should be made public. Only through such steps, the Government would prove its political willingness to combat, credibly, violence committed against trade union members and to combat impunity, in accordance with the recommendations accepted by Guatemala within the framework of the Universal Periodic Review by the United Nations Human Rights Council. In conclusion, the speaker reaffirmed the importance of the cooperation between the authorities of Guatemala and the ILO.

The Government member of the United States noted that since 2008, in the context of the Dominican Republic–Central America–United States Free Trade Agreement (DR–CAFTA), her Government was reviewing many of the same issues as the Committee of Experts with regard to Guatemala’s application of the Convention and had engaged extensively with the Guatemalan Government in an effort to resolve the issues raised in a public submission, filed by the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) and six Guatemalan unions, as well as to address systemic concerns about the enforcement of labour law in Guatemala. Although some positive steps had been taken, the Government remained gravely troubled by the overall lack of progress to date. The speaker noted that the Government of Guatemala had acknowledged the serious challenges it faced in effectively protecting the right to freedom of association and had on several occasions availed itself of ILO technical assistance to overcome these challenges. Nonetheless, devastating acts of violence against trade unionists continued; there were numerous shortcomings in the criminal, civil and labour courts that prevented effective enforcement of labour laws; and the situation of impunity remained as serious as ever. In view of these challenges, the speaker once again strongly urged the Government to intensify its efforts, in close collaboration with the ILO and with the full involvement of the social partners, to take the concrete and sustainable measures, which were urgently required, to guarantee freedom of association and the right to organize in Guatemala. Finally, the speaker expressed the hope that the Government of Guatemala would act decisively and without further delay to implement the conclusions and recommendations of the recent high-level mission so as to mark a long-awaited turning point in the application of the Convention in Guatemala and genuine progress toward full respect for the most fundamental of workers’ rights.

The Worker member of the United States recalled that Guatemala was one of the most frequently reviewed countries by the supervisory bodies of the ILO with regard to violations of the right to freedom of association and collective bargaining. For the last 20 years the supervisory bodies had identified and denounced serious, widespread and systematic violations of these fundamental rights and the ILO had sent several high-level missions to Guatemala, the latest one less than a month ago. Despite these efforts, Guatemala could be described as experiencing a near complete breakdown in the systems of labour and criminal justice. Much of this could be attributed to a complete lack of political will and successive administrations, which had together misused millions of dollars in capacity-building funds and technical assistance oriented towards the improvement of labour administration, judicial reforms and enhancing the capacity of public prosecutors to combat violence against trade unionists. With regard to anti-union violence, he recalled that freedom of association could only be exercised in conditions in which fundamental rights, in particular those relating to human life and personal safety, were fully respected and guaranteed. Statistics provided by the ITUC indicated that Guatemala was the second most dangerous country in the world in which to be a trade unionist. Furthermore, statistics provided in relation to the ILO high-level mission indicated that 53 trade unionists had been assassinated during the last five years. The most recent killing had taken place on 26 May 2011, in which Mr Idar Joel Hernandez Godoy, Director of Finance for Izabal Banana Workers’ Union (SITRABI), was killed while driving the union’s truck. During the last five years, three other SITRABI leaders had been murdered and in 1999 five members of SITRABI’s executive board had been forced into exile. In this regard, the speaker noted that despite the establishment of an office of the Special Prosecutor for crimes against trade unionists and journalists in 2002, there had been no progress in bringing the persons responsible for these crimes to justice. Police and department-level prosecutors often failed to undertake competent investigations and too frequently failed to investigate all possible motives, especially ones related to the victim’s trade union activity. This had also been indicated by the high-level mission, which had noted that in recent years there had been a certain tendency among investigators to privilege motives other than trade union activities. This tendency was in his view largely responsible for the 98 per cent rate of impunity in Guatemala. While referring to the Committee of Experts’ observation, he expressed his concerns that the announced budget cuts for the justice system in 2011 would worsen the situation. In conclusion, he urged the Conference Committee to include its conclusions on Guatemala in a special paragraph in its report and called upon the Government of Guatemala to combat the violence which was an impediment to the full and free exercise of freedom of association.

A Worker member of Colombia stated that the case of Guatemala was a serious, persistent and urgent case to which the Government had not provided a serious and convincing reply. It was a case of repeated and systematic non-compliance. The Government had maintained an anti-union policy and had allowed employers to maintain practices aimed at destroying the trade union movement, while the ILO supervisory bodies had been dealing with the case for more than 20 years. These bodies had identified at least 12 kinds of practices which obstructed trade unions’ rights to become established, including as a prerequisite, authorizations for trade union registration; the possibility for employers to challenge the establishment of a trade union; the sale of blacklists of workers who had belonged to unions; the judicial suspension of trade union immunity; the creation of “solidarity organizations” under the control of the employers; the fraudulent closure or change of name of the workplace; and the use of legal proceedings against workers. These practices were based on legislation which was contrary to the Convention and had not been changed, nor were there any government initiatives to change this legislation or to introduce mechanisms to provide protection against such abuses. The result of anti-union policies was that Guatemala had an extremely low rate of trade union membership (less than 2 per cent). He stated that nearly 200 pending applications for the registration of trade unions had received no reply from the Ministry of Labour and that as a result of the imposition of illegal and unfair requirements that delayed the deposit of union statutes more than half of the trade unions established in Guatemala (561 out of 961) had ceased to exist. None of the productive sectors in Guatemala achieved a trade union membership rate of even 1 per cent. Membership rates were as follows: 0.01 per cent in services and commerce; 0.31 per cent in the financial sector; 0.11 per cent in construction; 0.5 per cent in the maquila (export processing) sector; 0.6 per cent in industry; and 0.47 per cent in agriculture. The overall rate of unionization did not exceed 0.33 per cent. The Single Confederation of Workers of Colombia (CUT) regretted that a legitimate and autonomous trade union federation such as the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) was exposed to constant attacks for its repeated denunciation of violations of international labour standards, especially freedom of association. The speaker asked the Committee to remind Guatemala that it was unacceptable to exclude workers associated in different federations from social dialogue on grounds of submitting complaints and defending the working class.

The Government member of Germany expressed regret at the continuing violations of trade unions’ rights. While he welcomed the efforts made by the Government of Guatemala, he hoped that the Government would take note of the discussion which took place before the Conference Committee and act accordingly, especially with regard to improving the administration of justice.

The Worker member of the Bolivarian Republic of Venezuela expressed solidarity with the workers of Guatemala and, in particular, organizations such as the MSICG, in the face of acts of harassment, intimidation and persecution. She expressed particular concern at the serious and repeated violations occurring in export processing zones and provided the following data gathered by the MSICG from official records: of 90,000 workers in the maquila sector, only 488 were unionized, spread among six unions, all in precarious situations, and only three of which had managed to negotiate collective agreements, and they had done so merely for the sake of appearance, as the agreements either restricted the rights set out in legislation, or at best, restated them. She underlined the fact that, between 2006 and 2009, 71 maquila closures had been requested from the labour inspectorate and in the majority of cases, employers had not fulfilled their labour obligations. Although the Government had claimed to have imposed penalties on certain enterprises by suspending their tax benefits, in reality, the benefits enjoyed by these enterprises had only been suspended once the enterprises were no longer active. There had in fact been an increase in the tax benefits provided for by Decree No. 29-89 through an initiative promoted in Congress. She referred to the inclusion of representatives of the judicial authorities in the Government delegation, pointing out that one of the most serious issues was the systematic failure of the justice system. In that regard, she recalled that the MSICG had submitted proposals in that respect during the mission that had taken place in May 2011, and that its proposals had been intended to guarantee rapid and straightforward access to the competent tribunals for protection against acts that violated fundamental rights. She mentioned the significant judicial backlog and the fact that only 1 per cent of cases, brought with the aim of exercising the right to strike, resulted in the strikes in question being declared legal. It was being claimed that abuses of the amparo mechanism were causing the judicial backlog, but it was most often the Government of Guatemala, in its capacity as an employer, that submitted amparo claims. The Government brought 40 per cent of amparo cases, while private employers brought 36 per cent. The Committee had requested an increase in the resources allocated to the justice system, but the opposite had occurred, and the Supreme Court of Justice itself had stated, on 12 May 2011, that the 2011 budget for the justice system had suffered enormous cuts, which meant that many judicial functions might have to be put on hold. She concluded by requesting that, in view of the Government’s lack of political will and refusal to cooperate over many years, the Committee’s conclusions should feature in a special paragraph.

The Worker member of Uruguay said that the members of the Inter-Union Assembly of Workers – National Convention of Workers (PIT–CNT) deplored the fact that the absence of freedom of association in Guatemala was so serious that the MSICG – which represented over 225,000 paying members and, as a representative autonomous confederation, was the principal complainant against Guatemala before the ILO’s supervisory bodies – had been identified by the Government in its 2010 reports as seeking to destabilize the country and had been accused of terrorism on the sole grounds of having denounced the absence of freedom of association in the country. He requested that in the Committee’s conclusions the Government be requested to provide protection for the MSICG and its work teams and to put an end to the repression and criminalization of its activities simply for upholding freedom of association. If trade unions were to function in a climate of freedom of association, they had to be able to enjoy all civil liberties in full respect for human rights, especially as they related to people’s life and safety. The fact that such a situation existed meant that terrorist practices and activities were being protected or concealed, which was tantamount to state terrorism on the part of the very institution that should be enforcing those rights rather than denying them. There were other trade union rights that were being trampled on through the Government’s interference, its failure to enforce labour legislation, the lack of any effective judicial procedures and the denial of the workers’ right to establish trade unions of their own choosing. Instead, there was an obligation on the Government to promote freedom of association and the establishment of trade unions by taking steps to facilitate the exercise of those rights. That was not how the Government of Guatemala was behaving.

The Government member of Norway recalled that the Government of Guatemala had, on several occasions, appeared before the Conference Committee with regard to violations of the Convention. On these occasions, his Government, along with other countries, had urged Guatemala to take measures to bring its law and practice in line with the Convention. In this regard, the speaker associated himself with the statement made by the Government member of Belgium.

Another Worker member of Colombia said that, for all the Government’s assertions of its good intentions, it should not be forgotten that for the past 15 years the Committee had been unable to obtain any reliable indication that it could look forward to legislative changes that might be conducive to the full exercise of workers’ rights as they related to freedom of association. As early as 1998, the Committee of Experts had called on Guatemala in no uncertain terms to bring its legislation into line with international labour standards, and for the workers it was unacceptable that such a request be ignored. It was unfortunately obvious that there were still restrictions in terms of freedom of association, collective bargaining and the right to strike, which had been criminalized. That was why union membership was so low that those who claimed that the rule of law existed in Guatemala should be ashamed. A State that failed to respect these rights was a failed State that was doomed to failure; there could be no democracy if workers’ rights were not respected. He wondered: (1) how much longer the dilatory tactics of successive Guatemalan governments were going to continue; (2) why the current Government had not submitted the relevant Bills to Congress; (3) whether a level of unionization of under 2 per cent was something that the Government and the employers could be proud of; and (4) how the Government could hope to establish the rule of law in a country that did not respect workers’ rights even minimally. The speaker recalled that the high-level mission that had visited Guatemala in May 2011 had clearly indicated its concern at the legislative situation in the country, and especially the criminalization of strike action. Although he hoped that the Committee would see genuine progress in 2012, he requested that the conclusions of the Committee be included in a special paragraph in its report.

The Worker member of Brazil expressed his support for the trade union movement of Guatemala. The absence of democracy could well be one of the causes behind the murders of trade unionists in Guatemala. The report of the Committee of Experts gave concrete and alarming examples of situations encountered by trade unionists: 47 trade unionists assassinated between 2007 and 2010; acts of intimidation and acts of violence committed against trade unionists and trade union offices, as well as the absence of negotiations with the enterprises of the country, were all disgraceful situations for Guatemala and for Latin America. In that connection, special protection had to be put in place for trade unionists and ensured by the Prosecutor responsible for human rights. Furthermore, it was important for all trade unions of Guatemala to participate in all dialogue forums as it was equally important to avoid the discrimination of the trade union movement of the indigenous peoples so as to ensure its participation in social dialogue. For it was not up to the Government, nor the employers, to choose their interlocutors in social dialogue as the latter should be engaged with all the social movements and all the trade union movements of the country.

An observer representing the World Federation of Trade Unions said that the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), an independent trade union confederation representing more than 255,000 workers, regretted the fact that the Government had not provided the Committee with a reply to the comments made by the MSICG in 2010, and further regretted the fact that the Government was failing to respect the ILO supervisory bodies and those present on the Committee, displaying no political will at all. She illustrated this with the following examples: (1) despite the Committee’s request to the Government to increase the budget allocations for labour inspection, the Office of the Attorney-General, the police and the Supreme Court of Justice, the Supreme Court had revealed the fact that the justice system had suffered unthinkable cutbacks; (2) in 2010, the Government had informed the Committee of an increase of 30 labour inspectors, but the number of inspectors had fallen from 197 to 185; (3) whenever the State was being questioned about anti-union violence, it created or suppressed the unit for crimes against trade unionists or the Office of the Attorney-General to suit itself; (4) the Government cited as a step forward the Ministerial Agreement No. 106-2011, issued on 3 March 2011, which, according to the Government, would allow the police, together with labour inspectors, to enter a workplace if an employer denied access for three days, but only if there were signs of the worst forms of child labour, if maquilas were to be closed, or if more than ten workers had been dismissed. She said that the aforementioned Agreement represented a serious setback and a flagrant violation of section 281 of the Labour Code, which covered the obligation of the labour inspection services to enter premises, accompanied by the police, at any time if an employer refused access and in any circumstances; (5) the Government had stated that it had recovered large sums of money for workers dismissed from maquilas but, between 2005 and 2010, workers had lost more than 73 per cent of the labour benefits to which they had been entitled because of failures on the part of the labour inspection services; (6) with regard to maquilas, in the case of a certain enterprise, the public prosecutor for human rights had identified violations of workers’ rights and reasonable indications of crimes by labour inspectors, but nothing had been done about it; and (7) the State continued to point to the creation of committees for legislative reforms that never materialized, despite the creation of hundreds of committees. Lastly, she requested that the conclusions in the case should be included in a special paragraph as an act of justice for all the workers who had become victims of anti-union violence in its various forms, including murder, dismissal, and being unable to find work because of having formed a trade union.

The Government representative reaffirmed that the Government of Guatemala was not tolerant towards, nor did it endeavour to incite individuals to threaten, physically harm or kill any citizen of Guatemala, targeting trade unions or union premises, and that it took seriously the duty of the State to safeguard private property as the right of the individual. He reiterated that the Office of the Public Prosecutor would undertake an internal restructuring with the creation of the Special Investigation Unit into Crimes against Trade Unionists. He added that the mission that had recently visited the country had observed in its conclusions that violence was generalized and that it affected trade unionists, employers and all Guatemalan citizens, and that there was not therefore any stigmatization of workers. The situation was of concern to the Government and it was making efforts to resolve it, as indicated by the magistrates who were present. With regard to the legitimacy of the Tripartite Commission for International Affairs, he indicated that its representative status could not be challenged, as the Ministry of Labour had published in the newspaper with the largest circulation the call for employers and workers on an equal footing to propose their representatives in a participatory manner. With reference to the number of labour inspectors, he indicated that there were now 214, which showed that the promise to increase their number had been kept. He noted that efforts were being made gradually, such as, for example, the changes in the Office of the Public Prosecutor. He expressed concern that the efforts that were being made by the Government could be described as a joke when they consisted of changes that required major efforts, with the collaboration of the ILO and the assistance of other organizations, and that some of them were the result of agreement reached in the Tripartite Commission. The work of the Commission that would revise the legislation would include following up the draft reforms to the Labour Code formulated by the Tripartite Commission with ILO assistance, which were known as the “Marin Draft”. He called for the Committee to support the Government, which he said would continue its efforts for the full application of the Convention. He added that a new generation of citizens of Guatemala were taking up high-level positions and that they had a vision of the country in which all sectors had to work together, especially in relation to national production, which involved a collective vision of progress.

The Employer members referred to the seriousness of the issue and expressed the unanimous concern of the Employers’ group. The Government of Guatemala had spoken of gradual changes, but it needed to demonstrate a more evident political will to strengthen the country’s institutions and to assess the progress made. According to the Government there had already been some progress, such as the creation of a special investigation unit and, hopefully, the provision of a budget and the adoption of measures to speed up procedures; but the Employer members hoped that the Government would take much more decisive action to put a stop to anti-union violence. They trusted that the efforts deployed in the Committee would not mean slowing the country’s economic development and investment and that the necessary legislative changes would come about through dialogue.

The Worker members welcomed the comments and encouraging remarks made by the different speakers towards the workers of Guatemala. All the legislative reforms recommended by the various ILO missions, the Committee of Experts, and the Conference Committee needed to be undertaken with the attentive assistance of the Office, and needed to have as their main objective the bringing into conformity of the country’s practice with Conventions Nos 87 and 98, and to guarantee workers that they could establish trade unions in full freedom, without any threat or pressure, in a climate free from fear. The Government also needed to undertake additional reforms on the following points: (1) a significant increase in the budget allocated to the Office of the Public Prosecutor, the Supreme Court of Justice, the police, and the labour inspectorate so as to make the action of the judiciary more rapid, effective, and independent; (2) the implementation of a profound fiscal reform so as to ensure the rule of law and strengthen the institutions responsible for the observance of human rights and trade union rights; (3) the effective reinstatement of all dismissed workers who won their appeals; (4) the guarantee of the ending of impunity so that perpetrators, instigators and accomplices of offences committed against persons defending trade union rights were arrested, brought to justice and convicted, which would mean that the acts committed against trade unionists were no longer systematically categorized as common law offences. Having taken due note of the good will expressed by the Government to establish a constructive and participatory dialogue, they emphasized the fact that all trade unions of Guatemala should be invited, especially the CUSG, CGTG and UNSITRAGUA, and that the invitation should be made public. They indicated that they trusted that the next report of the Committee of Experts would note the real progress on the different points raised. That would require the Government to embark rapidly on the necessary reforms with the relevant institutions, especially in consultation with workers’ organizations. In the meantime, the conclusions of the Conference Committee on the present case should appear in a special paragraph of its report.

The Employer members agreed with the proposal of the Worker members to include the conclusions in a special paragraphs of the Committee’s report.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative indicated that, in view of the two natural disasters that had occurred recently in his country, the Minister of Labour and Social Welfare had not been able to attend the Conference, although the presence of two magistrates from the Supreme Court of Justice and the Chairperson of the Labour Commission of the Congress of the Republic bore witness to the commitment of the three authorities of the State on this subject.

He said that, following the conclusions of the Committee in 2009, the Government had repeatedly convened the Tripartite Commission on International Labour Matters to formulate the road map, but that, as unfortunately no agreement had been reached with the social partners, the Government had taken the decision to draw up the road map itself, with the technical assistance requested from the ILO. With regard to the comments of the Committee of Experts referring to the insufficient political will of the Government as the road map had been drawn up only a few days prior to the session of the Committee of Experts in 2009, he considered it necessary to make the following clarifications. The Government had requested ILO technical assistance on 2 July 2009. The Ministry of Labour had convened the social partners on five occasions, without achieving consensus. A technical assistance mission had taken place from 16 to 20 November 2009, at which time the Government had drawn up the road map on its own, although with the technical assistance of the ILO. The Committee of Experts stopped examining these facts, their role and the needs of the Office itself for the provision of the requested technical assistance. He then provided information on the action taken in relation to the cases before the Committee on Freedom of Association, the recommendations of the Committee of Experts and the strengthening of inter-institutional coordination mechanisms.

With regard to the cases before the Committee on Freedom of Association, he indicated that the International Affairs Unit had been strengthened with two further persons and a seminar had been held to raise awareness of the importance and the Government’s commitment with regard to international labour standards among those government institutions responsible for sending the replies to cases and reports. With reference to the recommendations of the Committee of Experts concerning legislative amendments, a proposal had been submitted to the ILO technical official as a follow-up to the technical assistance provided. In relation to the strengthening of the coordination mechanisms, he reported that the Multi-institutional Commission for Labour Relations in Guatemala had been reactivated to facilitate assistance to the investigation of crimes against trade unionists and to maintain the flow of institutional information.

Referring to the inadequacies of the General Labour Inspectorate, he noted that, with ILO assistance and support, a programme for its modernization had been initiated, 30 inspectors had been recruited and measures had been adopted to increase resources and recruit further inspectors. At present, three services were operating which had recuperated wage arrears and fines to the amount of $1.5 million.

With reference to the export processing sector, he indicated that an operation had been carried out by the labour inspectorate in 21 enterprises, in some of which violations had been reported and preventive measures outlined, while in others charges had been brought because inspectors had been refused entry. A total of 28 workers had been reinstated.

With regard to freedom of association, he reported that there were 356 registered trade union organizations, and that 70 unions and 45 collective labour accords had been registered in 2009, which were the highest figures for the past five years. With a view to promoting the right to organize, the Government had concluded agreements with educational institutions to train trade union leaders. It had been decided to establish a labour training school in the City of Guatemala and another in Quetzaltenango. He added that, in terms of the establishment and registration of unions, once the founders had complied with the legal requirements, they were recognized, their status approved, they were registered and the constituent act was published.

Between November 2009 and March 2010, the Government had established four tripartite social dialogue round tables, three of which were in the interior of the country. In May 2010 a “tripartite social dialogue meeting for decent work” had been held in the presence of the Director of the ILO Subregional Office. Guatemala was also the beneficiary of an ILO regional and subregional project on social dialogue.

With reference to the issue of impunity, he observed that impunity and generalized violence were matters of concern to the authorities and that there had been 6,000 murders during the course of 2009. With regard to the investigation of acts of violence against trade unionists, the Ministry of Labour was endeavouring to determine precisely whether or not the persons whose names appeared on complaints against the Government belonged to a union, the situation with regard to the legal action taken and the organization of which they were members. He added that in most reports it was found that the death was not due to reasons related to trade union activities. One of the greatest problems confronting the Government was that in many cases the complaints were put forward by de facto bodies, as a result of which the members were not recorded in the Labour Register of the Ministry of Labour, which therefore lacked essential information to determine whether the victims were members of unions.

He recalled that in October 2009 the new Supreme Court of Justice had become operational and had been informed, taking into account the respect for the independence of the powers of the State, of the need to improve the judicial system in order to address the issue of impunity and the crimes committed against unionized workers. The Supreme Court was taking action to accelerate procedures. In the case of the murder of Mr Pedro Zamora, the Office of the Public Prosecutor had appealed against the ruling of the first level court which had found the person charged innocent and the ruling of the second level court was awaited. The new Attorney-General had also requested certain measures to combat impunity.

With regard to legislative matters, he recalled that an intersectoral dialogue round table had been established to review the Civil Service Bill, which was still before Parliament, although the necessary consensus had not been reached.

He concluded that his country was implementing the road map, institutional strengthening and social dialogue. The ILO was providing continuous support for the action taken. Freedom of association and the right to organize were recognized and protected in law and practice. The establishment of trade unions was subject to compliance with the requirements set out in law and trade union and vocational training were being promoted. He added that he would provide information to the ILO in support of his statement.

The Worker members recalled the number of comments made by the Committee of Experts concerning Guatemala with regard to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the number of cases examined by the Committee on Freedom of Association, ten of which were currently under examination, and the five high-level and direct contacts missions carried out in the country since 2005. Despite a tripartite agreement signed at the conclusion of a high-level mission in 2008, the absence of improvements in the functioning of justice was obvious. The resignation of the Director of the International Commission against Impunity in Guatemala (Mr Castresana) was cause for concern as it tended to indicate that he felt unable to accomplish his mission, because the Government had broken its commitment to combat impunity by appointing an Attorney-General linked to drug trafficking. This resignation was a great blow to the workers and the people of the country in general, who yearned for the rule of law. The Committee of Experts had itself denounced the slowness and inefficiency of the justice system.

An ILO technical assistance mission carried out in November 2009, in order to implement the recommendations of the Conference Committee, had not produced any results in the absence of consensus among the social partners. The road map adopted had very little substance and everybody agreed that social dialogue was in great difficulty in the country.

The attacks by the Government were so effective that the violence against the trade union movement had led to the weakening and restriction of the trade union movement. Violence, murders, discrimination, attacks, harassment towards trade unionists and their families were the daily reality of the trade union movement in Guatemala. To the point that after 24 years of democracy, the rate of trade union representation had fallen to 0.5 per cent.

Despite the promises made at the highest level, impunity remained the rule and took place in a subtle manner. The Government withdrew the recognition from trade union organizations which had nevertheless, in certain cases, participated in the work of this Committee, and as a result, the violent acts committed against the trade unionists were prosecuted simply as ordinary crimes. Moreover, when the harassment and murders of trade unionists became at last the subject of a judicial decision, their classification as ordinary offences made them trivial. Thus, the action of the judiciary raised questions as long as the Government did not show any willingness to respect the various conclusions and recommendations formulated by the Committee of Experts, the various missions and this Committee. The report of the Committee of Experts could seem measured in the face of such a desperate situation, but the problems raised showed clearly the violations of fundamental rights and civil liberties of trade unionists who demanded from the Government to act. The only comfort for the workers remained the constant attention that the ILO paid to their situation.

The Employer members observed that this case was being discussed in the Committee since the 1990s. Although initially the comments of the Committee of Experts on legislative issues had covered a whole page of its report, today, that list was much shorter. The Government had therefore demonstrated its willingness to address the issues over the years and had received many types of technical assistance from the ILO, including the bipartite high-level mission which had visited the country the previous year with the participation of the Worker and Employer Vice-Chairpersons of this Committee.

The observation of the Committee of Experts could be reduced to two sets of issues: impunity and legislative issues concerning the free establishment and functioning of trade unions. The question of impunity was very complex. It affected society as a whole and was not only directed against trade unionists as such. During the bipartite high-level mission, the Employer members had observed that a basic problem faced by the Government was the lack of resources to be devoted to fighting impunity, since taxes were a small share of the gross domestic product. There were not enough police officers, prosecutors, investigators, judges, etc., and more was needed to strengthen the judicial system in particular.

Following the 2009 session of the International Labour Conference, the Government had put together a road map to address the legislative issues on the basis of tripartite consensus. However, at this stage, it was not possible to reach conclusions as to the appropriateness or effectiveness of this road map. Certain obstacles to the establishment and activities of trade unions persisted. The statistics provided on trade union membership, if they were confirmed, referred to an astoundingly small percentage of trade union representation in the country.

In conclusion, the most important issue at this stage was the problem of impunity. The Employer members considered that the Government’s opening statement had accorded very little attention to this problem and that more information should be provided by the Government of its plans to address this problem.

A Worker member of Guatemala said that Guatemala had been the subject of similar observations by the Conference Committee, the Committee of Experts and the Committee on Freedom of Association, some of which were even more serious than those made between 1980 and 1995, during the war. He stated that Guatemala was failing to comply with almost all of its obligations before the various supervisory bodies and high-level missions. The tripartite agreements made as a result of the high-level missions in 2008 and 2009 had not been effective, as due follow-up had not been carried out under the road map.

The main problems were that the Office of the Public Prosecutor had not increased institutional capacity to deal with the serious acts of violence that occurred every day against trade unionists. The Office of the Special Prosecutor for crimes against trade unionists, which had come into being through the Committee, had been weakened and reduced to a special unit, with insufficient resources and working methods that did not take account of relevant factors in examining instances of anti-union discrimination. There was a reluctance to invoke anti-union discrimination. With a weak structure in place, the State was incapable of identifying obvious cases of violence against trade unionists, or of finding and punishing the culprits.

As a result of weak labour inspection services – there were only 15 labour inspectors within the metropolitan area – employers could destroy trade unions and prevent new ones from being formed with complete impunity.

There was no coordination among institutions. Trade unions had requested the promotion of the Multi-institutional Commission’s conflict resolution body, but to no avail. There was corruption and a lack of independence within the labour courts and other institutions, and action was taken in a fragmentary and unconcerned manner. The election of new courts of justice had not changed the situation, as many candidates vetoed by the unions for their anti-union attitudes were now magistrates. Export processing was a particularly vulnerable sector: a company was currently engaged in mass dismissals and acts of intimidation against trade unionists and their advisers. Additional legislative reform must also be undertaken, in line with the comments of the Committee of Experts.

In concluding, he said that, although the Government of Guatemala claimed not to pursue an anti-union policy, neither had it demonstrated that it had a policy of respecting freedom of association, as this Committee had borne witness for more than ten years. He therefore requested the Committee to include the case in a special paragraph drawing attention to the severity of the case, the lack of progress in fulfilling commitments, and the climate of widespread violence that had led to murders of trade unionists, intimidation, and the weakening of the individual guarantees that underpinned the exercise of freedom of association.

An observer representing the International Trade Union Confederation (ITUC) stated that for 15 years the Committee had been bringing to the attention of the Government serious problems with regard to Convention No. 87. Guatemala had the second highest number of active complaints before the Committee on Freedom of Association in the world. From 2005 to 2010, five highlevel missions and innumerable technical assistance missions had taken place. He emphasized that the Committee of Experts and other supervisory bodies had indicated that the situation had deteriorated.

Among the most serious violations which had recently become more frequent than ever, were: the obstacles to the creation and registration of trade union organizations, which took more than a year; serious acts of anti-union violence which remained unpunished; criminalization and stigmatization of trade union activity, lack of independence and effectiveness of the labour justice system reflected in excessive delays in the pronouncement of judgements and the reinstatement of trade unionists which took more than eight years, and lack of collective bargaining and effective social dialogue.

He emphasized that the situation was so serious that a few days ago, Mr Castresana, Head of the International Commission against Impunity in Guatemala had resigned, stating that there was nothing more he could do for Guatemala, given the lack of will by the Government to eradicate impunity and the designation of an Attorney General who was described by Mr Castresana as belonging to groups linked to organized crime and drug trafficking.

Since 2007, 47 trade unionists of the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) had been assassinated without any progress by the justice system in the investigation; certain activists were seriously threatened like Lesbia Amezquita whose case had been examined by the Committee in 2009; the harassment against her had continued and even the Human Rights Ombudsperson had requested personal security measures which had not been provided. In March 2010, Luis Felipe Cho had been tortured and murdered after having received threats as a result of his trade union activities. Nevertheless, the Labour Ministry had indicated that Luis Felipe Cho was not a trade unionist. The speaker requested that the documents testifying the trade union registration of Luis Felipe Cho should appear in the records. He indicated that the programme for the protection of trade unionists was in the same state as the public prosecution service for crimes against trade unionists, to which the Government kept referring in each Conference although it had been abolished since 2005.

To conclude, he requested that the conclusions be included in a special paragraph with concrete proposals to resolve immediately the serious anti-union situation.

The Employer member of Guatemala regretted the lack of regional balance in the composition of the list of cases to be examined by the Committee, which affected the credibility of the supervisory system, especially when it was the result of reasons that had no place in the world of labour. In its observation, the Committee of Experts had referred to three basic questions: violence against trade union members; legislative issues; and problems that affected the export processing sector (maquilas), which in fact was the clothing and textile industry.

As for violence against trade union members, he reiterated the Employers’ commitment to investigate and identify responsibilities. In this respect some contacts have been made with the General Prosecutor of the Republic. Support had also been given to strengthening and professionalizing the labour inspection. However, it should be remembered that the climate of indiscriminate violence in the country had affected all the sectors of the population and that many of the acts of violence against trade union members could have had motivations other than their trade union activities. That should be taken into account, because it could not be confirmed that there existed a climate of anti-union violence in Guatemala. The existing low rate of trade union membership must not be attributed to those motives, but rather to the informality of the economy and the crisis in trade union leadership.

Some legislative aspects, such as the right to strike were not covered by Convention No. 87. He noted, however, that within the framework of the Tripartite Commission on International Labour Affairs, employers had been promoting changes in the system of strikes so that strikes could be declared more easily as long as they took into account the right of workers who did not support it to continue working. This initiative had not been supported by workers. As for the requirement of Guatemalan nationality in order to become a trade union leader, that was difficult to change because it would be necessary to change the Constitution.

The positive results of social dialogue, which allowed for a consensus on the need to reform the system of sanctions in cooperation with the ILO and pursuant to the guidelines agreed upon in the Tripartite Commission on International Labour Affairs, should be emphasized. It was hoped that the other pending legislative questions could be solved through social dialogue. As for the clothing and textile sector, he stressed that this sector represented 23 per cent of the country’s exports and 8 per cent of formal employment, and was one of the sectors that offered the best employment guarantees. He added that collective bargaining was carried out in that sector directly, without conflicts, between workers or their delegates and employers, resulting in greater benefits for workers and greater productivity for businesses. However, when there were conflicts, those were dealt with on two levels: first through voluntary mediation by the Centre for Alternative Resolution of Conflicts of VESTEX; and then through the general labour inspectorate.

The Government member of the Bolivarian Republic of Venezuela spoke on behalf of the Government members of the Committee Government members of the Group of Latin America and the Caribbean (GRULAC) countries. He observed that the Committee of Experts had noted that the Government had held consultations on the development of a road map but that consensus had not been reached between the workers’ and employers’ organizations. He nevertheless welcomed the fact that a road map had been developed in compliance with the Committee’s recommendations in June 2009. The GRULAC countries also drew attention to the technical assistance that the ILO had provided on the modernization of the country’s legislation and urged that the Government’s request be granted that all necessary assistance be made available rapidly and as an integrated package. The Government had shown its intention to collaborate by accepting the high-level mission in 2008, as well as other technical assistance missions.

The Government member of Belgium, speaking on behalf of Austria, Belgium, Germany and the Netherlands, declared that the Government of Guatemala had, since 1991, and up until 2010, been the subject of several observations of the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. A Tripartite National Commission for full implementation of the Convention as well as a road map had been established. The tripartite nature of that Commission must be preserved in order to guarantee the full participation of the social partners in that process. It was urgent that adequate measures be taken to punish those responsible for acts of violence committed against trade union members and that the results of the investigations carried out were made public. Through such steps, the Government would prove its political willingness to combat credibly violence committed against trade union members, to combat impunity and to adhere to the recommendations accepted by Guatemala within the framework of periodical review by the United Nations Human Rights Council. Creation by the Government of a committee of experts for nominating candidates for the Supreme Court could be favourably received, especially if the committee permitted the participation of civil society.

The Worker member of Colombia recalled that the present case had been examined on 14 occasions over the last 20 years for the same reasons. The Committee had adopted various recommendations that had been ignored by the Government. Consideration should be given to what measures the ILO could take in cases of persistent violence and harassment against trade unionists, impunity, legal and institutional obstacles to forming or joining trade unions, and lack of social dialogue. The measures taken so far by the ILO had not succeeded in improving the situation. What could be done in the face of a Government that, though professing goodwill, had not taken action to change the situation? The Employer and Worker members of the Committee should devise more effective measures. The situation could not be ignored and hoping that it would improve over the coming year was not sufficient. Deeper and more sincere political will was needed, based on democracy and effective social dialogue, to remove obstacles to the exercise of freedom of association. Such will did not exist in Guatemala.

The Government member of the United States, referring to a public submission that had been received in 2008, from the American Federation of Labour and Congress of Industrial Organizations (AFL-CIO) and six Guatemalan unions under the Labour Chapter of the United States–Dominican Republic–Central America Free Trade Agreement stated that her Government was reviewing many of the issues the Committee of Experts had been examining with regard to Guatemala’s application of the Convention. Effective enforcement of Guatemalan labour laws and the human and trade union rights of Guatemalan workers were a high priority for her Government. Her Government was disappointed by the lack of progress that had been made to date. The Government of Guatemala had acknowledged the serious challenges before it and had availed itself of ILO technical assistance on several occasions, including a number of high-level missions, the latest of which had led to the elaboration of a road map, prepared by the Government, that had outlined steps needed to be taken to address the observations of the Committee of Experts. In light of the ILO’s efforts to provide necessary assistance, it was especially troubling to note that the grave violence against trade unionists had not been stemmed, that the numerous shortcomings in the operation of the criminal justice system persisted and that the situation of impunity remained as serious as ever. There was a clear and continuing need to improve labour law enforcement to ensure that workers could establish organizations in full freedom, including in export processing zones, and that those organizations could plan and carry out their activities freely. She urged the Government to redouble its efforts, in close cooperation with the ILO and with the full involvement of the social partners, to bring about as soon as possible concrete and sustainable improvements with regard to all aspects of freedom of association and the right to organize in Guatemala.

The Worker member of Brazil drew attention to the long-unresolved legislative problems, which consisted of restrictions on the establishment of organizations, as half plus one of the number of workers at an enterprise was required; restriction of the right to freely elect union leaders, as they must be Guatemalan and work at the enterprise or in the same economic activity to be eligible for election; restriction of the free exercise of activities, given that a majority of workers were needed to declare a strike; the possibility of imposing compulsory arbitration in disputes in the public transport sector and fuel-related services; prohibition of solidarity strikes; and a bill requiring high percentages for the establishment of trade unions. Furthermore, official union registration had been delayed for up to a year and a half. The right of unions to join federations and confederations had also been obstructed. He highlighted in particular the situation of the Trade Union Confederation of Guatemala (UNSITRAGUA), which, though formed in 1985, had yet to be registered; the Government had recently, and with surprising rapidity, accepted the registration of a new federation with the same name, made up of four organizations of doubtful activity. Taking into account the background of violation of the Convention in various respects, a high-level mission in 2008 had approved a tripartite agreement to modernize legislation and bring it into line with the Convention. In addition, the Committee of Experts had taken note of the ongoing technical assistance in the country. Such measures, like the Government’s promises, had been repeated since the year 2000. The Committee, however, should not maintain the same attitude as it had for the last ten years.

The Employer member of Spain observed that the climate of increasing violence in Guatemala could be demonstrated by the deaths of more than 6,000 people, as had been indicated by the Government. The increase in drug trafficking was also a matter of concern. First, priority must therefore be given to ensuring a climate of stability and normality in all activities and to strengthening the fight against impunity. Second, it was important to identify and investigate whether acts of violence and crimes against trade unionists were a consequence of their union activities. Although some progress had been made with regard to constitutional protection (amparo), steps must be taken to expedite freedom of association proceedings and guarantee effective penalties. Third, the road map formulated by the Government was a positive step; it must be implemented as a priority in an incisive manner, in line with the conclusions of the two high-level missions. Fourth, it should be borne in mind that the issue involved the whole of Guatemalan society: not only did it require firm political will on the part of the authorities; but employers’ and trade union organizations must assume responsibility too. A constructive attitude, open to finding regulatory solutions and ready to work effectively against alleged acts of intimidation and violence, was key.

The Worker member of France stated that the gravity and the number of violations of trade union rights in Guatemala remained appalling, making it one of the most dangerous countries in the world for trade unionists. The types of crimes committed against both trade unionists and agricultural workers’ leaders stood out because of their cruelty and were allowed to happen, because they remained unpunished, and because trade unionists were seen as targets. Luis Felipe Cho had been tortured and brutally murdered after being threatened for carrying out trade union activities. His severely mutilated body was found on 6 March 2010. He was one of the six unionists from the real trade union movement, united in the MSICG, murdered since the beginning of 2010. He called upon the Government to bring the killers and instigators behind this murder to justice.

Referring to the conclusions this Committee made in 2009, he regretted that, since then, the situation had only degraded. The latest comments of the Committee of Experts were particularly severe when it concluded that the Government had failed to demonstrate sufficient political will to combat violence against trade union leaders and members and to combat impunity. The Committee of Experts also indicated that the conclusion of the Conference Committee concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendation of the ILO supervisory bodies, continued to be globally valid. Over the past 17 years, there had been technical missions and numerous reports from the Committee of Experts, recommendations from the Conference Committee and conclusions from the Committee on Freedom of Association. The latter had condemned the Government for letting the violence and impunity go on, and for refusing to cooperate with it. An international commission to combat impunity in Guatemala had been established. A road map had been drawn up last minute, but had not been implemented. The Government had refused to grant domestic workers the right to organize in trade unions. The Prosecution Service had not investigated crimes against trade union members, despite its commitment to do so. It was clear that, despite its declarations, the Government was unwilling to act to create a safer climate for trade unions, workers and peasants.

He expressed the hope that the Government would fully cooperate with its international partners and the ILO and was disappointed that no statement had been made by the European Union, which had been promoting and supporting human rights and democracy worldwide. He supported the request for a special paragraph on Guatemala in this year’s report and called on the ILO to give more publicity to the allegations made against the Government and its negative attitude.

The Government member of Panama supported the statement by GRULAC and recognized the Government’s efforts to apply the Convention and put into practice the Committee’s recommendations. Panama and Guatemala, as members of the Central American Integration System (SICA), recognized the importance of freedom of association as a basic human right, closely linked to freedom of expression, and the basis of democratic representation and governance. He therefore requested that all the requested assistance for effective application of the road map be provided to the Government.

The Worker member of Germany expressed his deep concern at the situation of trade unionists in Guatemala who continued to be exposed to harassment, physical violence and disappearances. He saw no improvement in this case: crimes committed against trade unionists had remained unpunished; impunity prevailed; labour laws continued to be violated and neglected; the registration of trade unions continued to be hindered; trade union activists were stigmatized and union members dismissed. Moreover, as an employer, the State itself had taken anti-union measures against its own employees, as was the case with the Gualpapa municipal service workers and workers of various ministries. The Guatemalan unions had repeatedly drawn the Committee’s attention to the many onerous anti-union practices that existed, including the blacklisting of union members and the requirement, when applying for a job, of indicating one’s membership in a union. The latter was found not only in the private sector but in state enterprises as well, although this clearly infringed upon the guarantees set out in the Constitution. He expressed profound dismay over the prevailing situation and called upon the government representatives of countries of the European Union (EU) to take a strong position with respect to workers’ rights in Central America; he urged that labour rights be enshrined in a special clause in the EU Association Agreement, together with an attendant mechanism to ensure compliance with those rights.

The Worker member of Spain said that Guatemala was a paradigm for the systematic violation of fundamental rights. Moreover, in addition to direct and extreme forms of anti-union violence (killings, kidnappings, rape, threats), other kinds of violence were perpetrated against freedom of association, such as the criminalization of trade union activities, the ineffective justice and labour inspection systems and the lack of protection against intimidation, discrimination and interference in trade union affairs or the refusal to recognize them. The purpose behind this was to destroy the independent trade union movement, as in the case of the MSICG which the Government had not accredited to the Conference. In addition to the other major problems facing Guatemala, such as the informal sector situation and the lack of equality between men and women, there was no social dialogue, as was evidenced by the adoption of a road map by the Government without consulting the social partners. The road map was adopted in November 2009, with most of the deadlines for adopting the measures falling on 31 December 2009 and some even before the adoption of the road map. Like every one of the Government’s other commitments to the supervisory bodies, the road map had not been respected. There was no political will to develop social dialogue. For all those reasons, he requested that the case be included in a special paragraph of the Committee’s report and urged that social dialogue be encouraged by compliance with the Convention, that the whole context of workers’ representation be revised so as to include representatives freely elected by the workers, and that the Government complied with the observations of the supervisory bodies.

The Worker member of the United States recalled that this case had been on the agenda of this Committee for the last 13 years and regretted that nearly all its conclusions and recommendations had been ignored by the Government. The Committee of Experts had made this point clear when it had referred to lack of political will. There were two types of ongoing impunity for which the Government was unmistakably responsible: the impunity in relation to the authors of violence committed against Guatemalan trade unionists; and the impunity in relation to the overall supervisory and standard-setting function of the ILO.

With regard to the first point, just in the last three years, there had been at least 40 unresolved cases of brutal assassination of trade unionists for having exercised their freedom of association and collective bargaining rights. This represented an increase as compared to the at least seven murders for the 2005–06 period. At least six killings had occurred in 2010, including the murder and dismemberment of Luis Felipe Cho and the murder of Pedro Antonio Garcia of the Municipal Workers of Malacatán in San Marcos. According to the 2009 Report on Human Rights of the United States State Department, despite some limited investigations by the Public Ministry, there had been absolutely no known progress in numerous cases of assassination of trade union leaders. The State Department had also reported that the suspect Valiente Garcia, arrested for the 2007 murder of Pedro Zamora, Puerto Quetzal Dock Workers Union General Secretary, had been acquitted and released, with a second suspect, Dremier Fuentes, remaining at large. In a meeting at the Guatemalan Embassy in Washington in 2009, the speaker indicated to have been informed that the Zamora assassination case had been satisfactorily resolved with the responsible parties investigated and pursued, following a complaint jointly filed by the Guatemalan trade union movement and the AFL-CIO pursuant to the Labour Chapter of the Dominican Republic–Central America–United States Free Trade Agreement. The 2009 ILO high-level mission had received evidence of “the general lack of independence of the judicial authorities and Government bodies” in relation to violent crimes committed against trade unionists. According to the 2010 ILO report on labour inspection in the Central American region, Guatemala had reduced its budgetary allocation for inspection. It had thereby further contributed to the impunity and had wilfully disregarded its commitment made in the Tripartite Commission following the conclusion of the 2008 ILO high-level mission.

The Government had also shown its contempt for the ILO supervisory bodies. According to the MSICG, a member of the Committee of Experts had attempted to meet with the Labour Ministry, the Supreme Court of Justice and the Prosecution Service of the Public Ministry, but had been ignored. In response to the concerns and findings of the Committee on Freedom of Association published in November 2009, the Government had completely evaded the Committee’s queries by stating that it had no knowledge of the existence of the complainant organization, MSICG, despite the fact that this organization consisted of ITUC affiliates, including the CGTG, CUSG and UNSITRAGUA. Accordingly, in March 2009, the Committee on Freedom of Association had expressed its concern at the Government’s dilatory responses in Case No. 2709, as well as its objections to the eligibility of the complainants. He therefore called for this case to be included in a special paragraph.

The Government representative stated that the main problems facing the country, as well as its society in general, were violence and impunity. Guatemala had requested assistance to combat impunity, which had resulted in the establishment of the International Commission against Impunity in Guatemala (CICIG) in 2007. The President of the CICIG had resigned just a few days earlier, after lodging complaints against the new Public Prosecutor. The President of the Republic had ordered that the complaints be investigated. However, the current situation had not affected the Government’s commitment to the CICIG, whose mandate continued to be in force and necessary and had to be strengthened.

With regard to the comment of the Worker members concerning the lack of substance of the road map, he noted that it had been drawn up with the assistance of the ILO and regretted that there had been no consensus in the Tripartite Committee. As for work in maquilas, the proposed amendments to the Labour Code contained provisions in this respect. The Government had repeated its request for technical assistance in, at least, reviewing the road map, as well as the issues of social dialogue, legislation and trade union training, and hoped that it could be rapidly made available as an integrated package and directed to the social partners and the Government. With respect to the labour training school, a project for which the Government had attempted to find sources of assistance, the Government representative signalled the inclusion of a component aimed at strengthening the capacity of trade unions to submit proposals. Regarding the judicial system, eight additional courts were operating, a new Appeals Chamber was due to be established and the recently revised Code of Penal Procedure was now in force and was speeding up procedures with the introduction of public hearings. The Legislature had committed itself to increasing the budget of the judicial authorities.

With regard to the murder of Pedro Zamora, the Public Prosecutor’s Office had appealed against the sentence handed down in the first instance, which had declared the person concerned innocent, and was awaiting the outcome. The next report of the Government would contain information on other pending issues.

The Worker members, after having heard the explanations given by the Government representative, asked specifically that the Committee’s conclusions appear in a special paragraph of its report. Including the conclusions in a special paragraph should serve to remind the Government, and the international community and the social partners as well, just how important was the full and complete exercise of freedom of association in strengthening democracy, notably in Guatemala. The Committee’s conclusions should mention the following points: (1) the promulgation of a law guaranteeing all workers, including workers in the public sector, the effective exercise of freedom of association in accordance with Convention No. 87; (2) the inclusion within the law on the protection of rights (ley de amparo) of a recourse along the lines of that provided for in article 25 of the American Convention on Human Rights, of which Guatemala was a signatory; (3) the amendment of the national legislation so that the observations of the ILO supervisory bodies could be invoked as binding provisions; (4) the immediate reinstatement of all trade unionists who had been suspended by the country’s state institutions; (5) the strengthening of social dialogue by means of a redefinition of all the workers’ representative institutions, and guaranteed access to those institutions for all freely elected representatives of all workers’ organizations in the country, in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); (6) the registration of UNSITRAGUA, which like other trade unions has been seeking registration for over a year; (7) an increase in the financial resources of the labour inspectorate so that it could monitor effective compliance with the country’s labour legislation; and (8) the proper functioning of the machinery for protecting trade unionists and defenders of freedom of association and other human rights.

The Employer members stated that this case was important. However, they disagreed with the Worker members that the case merited a special paragraph in the Committee’s report. The Government, over many years, had taken advantage of technical assistance, and had made improvements to the labour legislation. However, two key issues remained: impunity and legislative gaps concerning interference with the activities of workers’ organizations which prevented them from operating in full freedom. Technical assistance had been provided on these two subjects, including visits from the Worker and Employer Vice-Chairpersons of this Committee, although nothing seemed to have worked. Impunity continued to be a problem, which affected all members of society, including trade unions. They emphasized the need to think of solutions beyond the standard tools used by the ILO to address the issues. The Employer members proposed sending an important and recognized personality to Guatemala, with high-level ILO support, to study the situation and make recommendations regarding impunity.

The Worker members emphasized that this was a very serious case and that the conclusions adopted were well drafted. It was nonetheless difficult to understand why the Employer members refused to include this case in a special paragraph of the Committee’s report. Economic interests should not prevail over fundamental social rights. The Worker members stated that they had considered not accepting these conclusions. However, as they were aware of the danger this would represent for the ILO’s supervisory system, the conclusions had been adopted even though they were not included in a special paragraph.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

A Government representative stated that the objective of achieving full respect for freedom of association, which was the reason why his country had ratified the Convention in 1952, was still relevant as a fundamental pillar for the development and reinforcement of collective bargaining, and he reaffirmed his commitment to this objective. Labour issues were at the centre of the Government's policies and touched upon practical issues, including the need to modernize labour legislation so as to harmonize it with the provisions of the ILO Conventions ratified by his country, the establishment of more responsive procedures and the strengthening of labour and business, especially in the current context of the country's participation in a globalized world.

The State had the obligation to prepare a fertile ground so that the Guatemalan people could accede to decent employment, have sufficient resources to satisfy basic needs and raise their standard of living, in an environment of respect for individual rights and access to the protection of an efficient social security system. The Political Constitution of the Republic envisaged a series of individual rights and guarantees for workers and ensured that these could only be improved upon and never reduced. These guarantees could be improved upon through collective bargaining. Moreover, international human rights Conventions and treaties, including those on labour law and freedom of association, were recognized as having supremacy.

He indicated that in April this year a high-level mission had taken place as recommended in the conclusions of this Committee in 2007 with encouraging results, resulting in the signature of an agreement in the framework of the Tripartite National Committee. Moreover, he informed the Committee of the existence within the Public Prosecutor's Office, of a Special Office of the Public Prosecutor for Offences against Journalists and Trade Unionists, which had been entrusted with the follow-up of the pending cases. It should be emphasized that there was no institutionalized policy of violence against trade unionists or any other social group, and that the Government had accepted its duty to facilitate the investigation of these cases with all available means.

Trade union rights, in the same way as the rights of every citizen, could only be exercised in a climate of peace and tranquillity, without an individual's actions being subject to any kind of violence, especially for the exercise of a legitimate right such as the right to associate, whether in respect of labour matters or in any other area. The report of the Committee of Experts referred to the specific case of the Secretary-General of the Union of Workers of the Quetzal Port Enterprise; he should recall that until now, the investigations carried out had not produced any proof of a murder as a result of trade union activities. The investigation was continuing in order to determine the true reason for the murder and to punish those responsible.

As for section 215(c) of the Labour Code, which established the need to have 50 per cent plus one of those working in the occupation to establish industry trade unions, as noted in the report of the Committee of Experts, it should be noted that draft texts already existed to amend the Labour Code along the lines indicated by the Committee of Experts.

With regard to the delay in or the refusal to register trade unions, the legislation did not allow such a refusal vis-à-vis any trade union unless it failed to comply with a requirement provided for in the law. In cases where a formal requirement had not been met, the omission was rectified by giving the opportunity to the applicants to comply with the requirements. Moreover, work was being undertaken to reform and modernize the labour legislation, while maintaining the concepts and principles which should reinforce relations between employers and workers.

In order to speed up judicial procedures, nine courts of first instance had been created in addition to those that already existed and efforts were being made for the establishment of courts in areas in which the labour force was concentrated, such as the Department of Izabal, Alta Verapaz, Santa Rosa, Suchitepéquez and El Petén. In these departments four tribunals of second instance had also been created in order to facilitate access to justice. Moreover, work was under way on a legislative initiative to amend the Act on the protection of constitutional rights (amparo); considerable progress had been made with the draft text which was awaiting the opinion of the Constitutional Court.

With regard to the Civil Service Bill, he said that it had been withdrawn from discussion at the plenary session of Congress taking into consideration the objections formulated by the regular supervisory bodies. In fact, the elaboration of a new draft was under consideration in order to bring it into line with the provisions of the Convention, with the assistance and technical and financial support of the ILO.

With regard to the export processing sector, the staff of the General Inspectorate of Labour had been increased to focus exclusively on this sector. The Government had requested the ILO Subregional Office, in the framework of the technical and financial assistance requested, to address the subject of freedom of association and collective bargaining in the export processing sector, by carrying out monthly tripartite seminars on freedom of association and collective bargaining in the export processing industry. He took advantage of the present opportunity to reiterate this request.

He stated that the Tripartite National Committee had already been established and dialogue had commenced in order to obtain a solution to the problems raised by the workers and employers and agreements on legal reform. To this effect, a specific subcommittee had been created and met every 15 days in the Ministry of Labour and Social Insurance.

The agreement signed during one of the meetings of the Tripartite National Committee between employers, workers and the Government as a result of the visit of the high-level mission in April this year, demonstrated the good faith and political will of the Government to look for solutions through the reinforcement of social dialogue and through agreements reached by consensus.

With regard to labour statistics, he said that the Government was working on the restructuring and modernization of the Ministry of Labour and Social Insurance, including the strengthening of such areas as the directorate of labour statistics. The following tasks had been given priority: surveys and statistics on all aspects of labour matters, an ongoing programme of studies on labour markets and the corresponding technical areas (economics, statistics, sociology, etc.) aimed at ensuring training and research on labour issues.

Finally, he referred to the signature of a collective agreement on labour conditions with one of the most important organizations of the country, the National Teachers' Assembly, which brought together approximately 14 unions from the education sector; the signature of a collective agreement on conditions of work with the Trade Union of Employees of the Ministry of Labour and Social Insurance; the authorization of various trade unions which resolved the formalities for their establishment, including the Union of Investigators of the Office of the Public Prosecutor, the employees of the export processing sector and the trade unions of agricultural employees. As a result of the above, he requested once again the necessary technical and financial assistance to continue improving the system for the application of ILO Conventions. The text of the Agreement was as follows:

Agreement in the framework of the Tripartite National Committee

In the City of Guatemala, the Government of Guatemala, represented by the Ministry of Labour and Social Insurance, the representatives of the trade union movement, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), gathered together in the context of the Tripartite Commission, for the purpose of the ILO high-level mission (21-24 April 2008), to agree to examine the following subjects with a view to drawing up draft reforms or guidance for the purpose of the improved application of ILO Conventions Nos 87 and 98:

(1) Evaluation of institutional action, including the most recent, and particularly the special protection measures to prevent acts of violence against trade unionists under threat. Also, the evaluation of the measures that are being taken (increases in budget allocations and in the number of investigators) to guarantee effective investigation with sufficient resources to permit the elucidation of the crimes against trade unionists and the identification of those responsible.

(2) Examination of the dysfunctions of the current system of labour relations (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers' and employers' organiza- tions and their members as laid down in Conventions Nos 87 and 98 in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Applica- tion of Conventions and Recommendations.

Bearing in mind that the problems indicated have persisted for many years, the parties undertake to examine these matters rapidly through monthly meetings for the purpose of preparing progress reports.

Considering that the supervisory bodies have placed emphasis on the problems indicated, the parties undertake to work intensively in a consensual manner with a view to drafting reforms or guidance and to inform the Committee of Experts before its next session in November 2008, on the understanding that the progress reports are to be submitted every two months to the International Labour Office.

The high-level mission undertakes to provide appropriate technical assistance in relation to these matters.

The Employer members expressed their appreciation for the continued positive attitude of the Government. They recalled that the application by Guatemala of Conventions Nos 87 or 98 had been discussed by the Committee every year since 1991, and very frequently throughout the 1980s. A review of the Committee of Experts' comments over this period showed that there had been a steady and ongoing implementation of both Conventions. The list of issues raised by the Committee of Experts was decreasing, and this was to be commended.

They noted that there had been a new Government since 14 January and that, as the Government representative had indicated, a Tripartite Agreement had been signed in April 2008 as a result of the ILO's high-level mission. This agreement committed the Government and the social partners to meet on a monthly basis to work together on draft legislation and guidelines. In this respect they reiterated the need for the commission established by the agreement to take into full consideration the comments made by the Committee of Experts.

The recent rise in the number of deaths and murders of trade unionists was deeply regrettable; noting the Government's indication that it would expand the office of the Public Prosecutor to address this problem, they expressed the hope that the Government would soon do so and undertake other measures to protect trade unionists. It was a central principle of Convention No. 87 that freedom of association could only be realized in an atmosphere free from violence and intimidation.

They concurred with the Committee of Experts that the requirement of half plus one of those working in the occupation to establish a trade union was too high. The requirement to be of Guatemalan origin to run for trade union office was also not in conformity with the Convention. As concerned strikes, they emphasized that due account must be taken of the different circumstances, conditions and level of development pertaining to each country. No single rule applied in this respect, as what could be considered an essential service in one country might not be essential in another.

The Worker members emphasized that Guatemala was once more on the list of individual cases because of its regular violations of the fundamental rights of workers, notably to freedom of association and the right to negotiate - violations that went as far as murders of trade union leaders and militants. Guatemala was one of the most dangerous countries for trade unionists, with a serious situation of impunity and corruption. The fact that a newly elected Government had taken office had produced a glimmer of hope. At the end of January 2008, during the International Conference on Impunity, the new President of the Republic had declared his will to do everything possible to eradicate violence towards trade unionists and to put an end to endemic impunity. Unfortunately, since then, the situation had deteriorated further.

The previous year, the Worker members had condemned the acts of violence committed on trade unionists. Yet, the list of victims continued to grow and practically nothing had been done to identify and punish the culprits. The complaints submitted by unions had either been declared irreceivable or without merit and the persons who had submitted them suffered acts of intimidation and threats. In this regard, it should be noted that the Government representative had expressed a commitment to strengthening the prosecution services. A series of attacks - notably at the headquarters of the General Central of Workers of Guatemala (CGTG) and at the home of the leader of the Confederation of Trade Unions of Guatemala (CUSG) - of assassinations, including that of Carlos Enrique Cruz Hernandez, member of the trade union of workers of banana plantations, and of arrests, proved that the situation had worsened and that the intolerable climate of violence and impunity was continuing. In this context, they said that it would be useful to know the initial conclusions of the ILO mission in Guatemala in April 2008.

Concerning the non-conformity of the legislation with the Convention, they emphasized that this restrictive legislation prevented de facto the organization of legal strikes. The Government had not replied to the request of the Committee of Experts to prepare a thorough reform of the legislation in that regard. Restrictions on freedom of association and collective bargaining remained common practice in the 250 export processing sector maquilas, where there were not even seven trade unions, as indicated by the Government representative, but only three. The weakness of the labour inspectorate did not improve the situation.

With reference to the legislation on the civil service, which was contrary to the Convention, they said that nothing has been done to amend it and, in practice, trade unionists had been laid off, notably at the National Credit Bank and the Office of the Public Prosecutor. The Committee of Experts had noted that dialogue was not effective in the National Tripartite Committee and that the Government did not show a will to make it work, using as a pretext to gain time the lack of consensus between workers and employers. No decisions were therefore being taken to amend the legislation.

In conclusion, the new Government and the International Conference on Impunity had raised hopes, but, unless the reports of the mission conducted by the ILO in April 2008 indicated otherwise, the information currently available showed a continued failure to comply with international labour standards. Promises and statements did not count when faced with the reality of systematic violations of trade union rights, in a climate of daily increasing violence.

The Worker member of Guatemala said that an examination of the observations of the Committee of Experts demonstrated that since 1999, the different governments of Guatemala had systematically demonstrated their indifference to tripartite efforts to overcome the serious problem of failure to comply with the Convention. Neither the continued discussion of the case by the Conference Committee nor the ILO's direct contact technical missions had led to measures by employers and governments to slow down the incessant killings of trade union leaders. It was clear that the situation in his country had worsened, as the following persons had been murdered: Marcotulio Ramirez Portela and Carlos Enrique Cruz Hernandez in the Izabal district banana plantations; Sergio Miguel Garcia and Miguel Angel Ramirez Enriquez on the Olga Maria plantation, as well as many other unionists murdered in previous years. There was a climate of violence, intimidation and threats. There had been illegal dismissals as a result of attempts to establish unions, for example: the Petén workers' distribution union, the Workers' Union of the Southwest and the union of the Instalcobra enterprise, which had been subcontracted by the DEOCSA company, part of the Spanish transnational enterprise Unión FENOSA. In the latter case, 32 unionists had been dismissed. Salaries had been illegally withheld for six months in the case of the workers at the Crédito Hipotecario Nacional. There were also 18 notifications of dismissal. All this had led to a climate of terror and the impossibility of having decent work.

The shameful institutional inability of the Office of the Public Prosecutor and the law courts to bring the guilty to justice had led to a feeling of impunity. While it was true that a special office had been established in the Office of the Public Prosecutor against journalists and trade union- ists to investigate crimes, there had been no real strengthening of its powers, which on the contrary had been weakened, as it had reverted to a mere local Office of the Public Prosecutor, with no national structure or capacity.

The main reason for failure to comply with labour provisions lay in the absence of effective enforcement. The legislation needed reforming in order to eliminate obstacles which prevented the exercise of freedom of association, and the general labour inspectorate, the Office of the Public Prosecutor and labour tribunals needed to take the necessary action. Effective and efficient internal controls were also needed for civil servants, including the application of the rules governing judges.

He added that the establishment of trade unions at the industrial level was limited because a figure of 50 per cent plus one of the workers concerned was required, which was a trap, as it was difficult, if not impossible, to know what 100 per cent of the workforce was in any specific activity. Nor did the employers or the Government know such figures.

Regarding strikes, section 241 of the Labour Code required that the strike be announced by a majority of workers and not by a majority of those voting. Given this impossibility, some unions had attempted to organize de facto strike action, only for the police to be given immediate orders to break up the strikes or for the Government to invent a pretext to end the strike, as had happened recently with the transport workers where, instead of giving precedence to dialogue, the Government had declared preventive measures to avoid an emergency, with the result that 49 workers had been imprisoned and one murdered. Sympathy strikes were also banned.

With regard to the export processing sector of maquilas, he stated that it was almost impossible for unions to be established as there was a climate of anti-union discrimination and violence, with all kinds of subtle methods and actions used to prevent unions from being set up. In view of the above, he called for the case to be included in a special paragraph.

The Government member of Peru, speaking on behalf of the Latin American and Caribbean Group (GRULAC), noted that as a result of the conclusions of the Conference Committee adopted by the 96th Session of the Conference in 2007, Guatemala had accepted a high-level mission, which had taken place from 21 to 24 April 2008, and that the country continued to show signs of openness and cooperation with the ILO supervisory system. He added that, as a result of the mission, a Tripartite Agreement had been signed which gave priority to certain subjects, with a view to the preparation of draft reforms and guidelines to improve the application of Conventions Nos 87 and 98.

He asked the Committee and the Office to respond positively to the request for technical assistance by the Government of Guatemala in order to support its efforts to achieve full respect for trade union rights in the country.

The Worker member of Colombia stated that because of anti-union practices there was virtually no freedom of association in Guatemala. According to information from the organizations concerned, the percentage of unionized workers was less than 1 per cent. The Committee of Experts had been insisting for some 20 years on the urgent need to protect the rights of the working classes, including the right to life, as murders of unionists in Guatemala was a constant menace. He expressed concern and asked for a full investigation of the trend towards the feminization of killings; according to information available, in the last eight years, more than 3,000 women had been murdered.

He expressed concern that despite the repeated promises to comply with and give effect to the recommendations of the Committee of Experts, reality showed that restrictions on the exercise of freedom of association persisted, both in the public and the private sector, and prevented any possibility of collective bargaining. He reminded the Government that the very existence of a tripartite body was not enough to ensure the existence of dialogue; all sides had first to show their determination to comply with international labour standards. He urged the Government to adopt measures to protect the lives of unionists, to intensify the fight against impunity and to bring an end to anti-union activities so as to prevent the continued extension of bad practices across the region. Finally, he asked that the case be included in a special paragraph.

The Worker member of the United States reported that two months ago he had witnessed a candid speech by recently elected Guatemalan President Alvaro Colom at George Washington University in Washington, DC. The President had emphasized the critical need for labour rights and social justice in Guatemala, and had lamented the destruction of Guatemalan unionism over several violent decades. Although the President's welcome words seemed sincere, he warned that good intentions alone would fail to reverse the chronic violations of freedom of association and collective bargaining rights in Guatemala, which the Committee had reviewed for most of the last ten years, and which had only worsened.

The American Federation of Labour and Congress of Industrial Organizations (AFL-CIO) had been assured by the Bush Administration and by advocates of the US-Dominican Republic-Central American Free Trade Agreement (DR-CAFTA), implemented two years ago, that the trade pact would improve the labour rights situation in the region, including Guatemala, by providing an incentive for good behaviour by incorporating a labour chapter. But implementation of the trade pact had not improved Guatemala's compliance with its existing laws on freedom of association and collective bargaining, as was fully documented in the joint complaint submitted by the Guatemalan labour movement and the AFL-CIO on 23 April 2008, pursuant to Chapters 16 and 20 of DR-CAFTA.

dispute settlement mechanisms of the trade pact was whether the parties were complying with their own labour laws, no matter how substandard they might be in terms of Conventions Nos 87 and 98.

As was evident from the 2008 report of the Committee of Experts and from the session under way, Guatemalan law on its face continued to be in flagrant violation of the Convention. Section 379 of the Labour Code continued to impose liability on individual workers for damages resulting from a strike, creating a chillingly fatal effect on the exercise of Convention No. 87 rights. The law still empowered national police to function as strike-breakers.

Anti-trade union violence and impunity had only worsened since the implementation of the DR-CAFTA. Cases since July 2006 that he could mention were: an officer of the Union of Banana Workers of Izabal (SITRABI ) shot at three times on 26 November 2006 after visiting union members at the Chickasaw plantation; Pedro Zamora, General-Secretary of the Quetzal Port Workers brutally murdered in front of his children on 15 January 2007, with evidence of some involvement by the former governmental administration, as well as continuing death threats against other leaders of the same union; Walter Anibal Ixaquic Mendoza and Norma Sente de Ixaquic, leaders of the Frente Nacional de Vendedores de Guatemala, shot and killed in downtown Guatemala City on 6 February 2007, as they were attempting to resolve a labour conflict related to the safety of street vendors; SITRABI Cultural Secretary Mario Tulio Ramirez assassinated in September 2007; on 22 January 2008, Rosalio René Gonzalez Villatero, General-Secretary of the San Benito Independent Farmworkers, murdered immediately after filing a complaint with the local prosecutor regarding a labour dispute: on 2 February 2008, Sandra Isabel Ramirez, daughter of the General-Secretary of the Union of Banana Workers of the South (SINTRABANSUR), whose members produce for Chiquita, abducted and raped by four masked men who interrogated her about her father's trade union work; on 29 February 2008, the son and nephew of José Alberto Vicente Chavez, a leader of the Union of Workers in the Coffee and Coca Cola Drinks Industry (SITINCA) at Retalheu brutally murdered at a bus stop while awaiting the return of their father and uncle from the city where ironically he had filed a complaint about his own personal safety; on 1 March 2008, shots fired into the home of the General-Secretary of CUSG, an affiliate of the International Trade Union Confederation (ITUC); and on 2 March, Miguel Angel Ramirez Enriquez, General-Secretary of SINTRABANSUR assassinated.

However, the report of the Committee of Experts mentioned a paltry record of only two convictions for anti-union violence and a grand total of 17 unionists in a pro- tection programme. Impunity for the intellectual and material authors of anti-union violence in Guatemala had reached crisis proportions. He called for a special paragraph in the case as false promises of improved labour rights through trade agreements and other ruses could no longer be tolerated.

The Worker member of Norway recalled that the Committee had been discussing grave violations of Conventions Nos 87 and 98 in Guatemala for many years, but that the situation had only worsened. In Guatemala the judicial system was almost non-functional. In addition, only between 1 and 2 per cent of workers were organized and few complaints were sent by workers to the Ministry. This was due to fear of harassment, loss of job, threats and even murder.

She described the case of the SINTRABANSUR union organization in the Olga Maria banana plantation. The union had been formed in July 2007 to negotiate a collective agreement and the legal minimum wage. After the union leaders had given the local office of the Ministry of Labour and Social Insurance a list of members' names, as required by law, the names had been immediately leaked to the employer, who had used private security agents to threaten and harass workers, both at work and in their homes. In November 2007, the employer had threatened to close the plantation if the workers continued to participate in the union. If they renounced they would receive €400. Protests by union leaders to local authorities and labour inspectors had achieved nothing. The General-Secretary of the union had refused to concede, had been kidnapped and tortured, before agreeing to resign. On 2 February 2008, his daughter had been interrogated by four men, raped and thrown down a river bank. One of the union founders, Miguel Angel Ramirez, had been assassinated in his own home in the same month. Danilo Mendez had later been threatened by armed and masked men who had surrounded his home.

Transport workers had organized peaceful protests in May 2008 against a decree that would force them to drive at night when the threat of attacks and killings was highest. Their request for dialogue with the President had been refused unless they ceased their protests. A new decree had been issued cancelling the drivers' contracts, limiting the right to strike and forbidding demonstrations for which approval had not been given. The drivers had been dispersed by special police units.

These were not isolated cases. Four shop stewards had been killed during 2008 and the perpetrators would certainly enjoy impunity, as courts and police lacked capacity and the will to bring the guilty to justice.

She asked the Government for an assurance that it would cooperate with the ILO to comply with Conventions that it had ratified.

The Government representative of Guatemala recognized the fact that there were problems in the country and stated that the new Government was aware of them. Referring to the issue of transport, he said that the Government considered it as an essential service subject to a special regime, and denied that force had been used in the case of the demonstration that had blocked all access to the country for three days. The solution had been achieved through dialogue. With regard to murder of trade unionists, he noted that in slightly less than four months since the Government had taken office, none had occurred. Regarding the export processing sector of maquilas, he emphasized that the Government's job was not to set up trade unions but to register them and that, contrary to what had been said by other speakers, and as the high-level mission had seen for itself, seven unions had been registered.

He called for reflection and stated that violence in the country was not institutionalized, that individual and collective rights were respected and that social dialogue was making progress. Technical and financial assistance was necessary in order to help the Government to modernize its labour legislation and bring it into conformity with international labour conventions and recommendations, in order to improve the living conditions of all Guatemalans.

The Employer members stated that a different strategy was needed. The Government had started slowly years ago to meet its obligations under Conventions Nos 87 and 98 in law and practice, and the recent Tripartite Agreement, drawn up under the auspices of the ILO high-level mission, had set an active timeline for reforms and guidelines to bring Guatemala's laws in line with Convention No. 87. These reforms would have to be reviewed and commented on by the Committee of Experts.

But they stated that the root cause was the violence in the country. Without a dedicated focus on protecting society and trade unions, there was no Government programme to address the violence, especially with respect to protecting trade unions.

Annual discussion in the Committee was not the solution. What was needed was ongoing engagement with the ILO with a focus on violence and working with the Government and other governments to set up a bona fide trade union protection programme with an adequate law enforcement, investigation and labour inspection system. Moreover, through the Tripartite Committee and with ongoing ILO engagement, the work on reform and guidelines could be completed. Enhanced efforts were required by the ILO, the Government and Guatemala's neighbours to address comprehensively the problem of violence and lack of compliance with the requirements of Conventions Nos 87 and 98.

The Worker members indicated that, following the discussion, they wished to formulate strict conclusions. The Government had to take all the necessary measures to ensure that the commitment made by the President of the Republic was respected and to put an end to the climate of violence and impunity. To halt the assassinations and acts of intimidation towards the trade union movement, the Government had to ensure that prosecutions were undertaken and that the perpetrators of these crimes, as well as their instigators, were convicted. It seemed necessary to opt for a different strategy and to propose the adoption of a special programme against violence, as well as the establishment of an ILO Office in Guatemala, to ensure the constant monitoring of the situation and the application of the Convention. In so far as, as demonstrated by the Committee of Experts, the legislative framework was in flagrant violation of the Convention, the Government had to prepare, with the social partners, a new legislative framework that guaranteed respect for fundamental labour standards in the public and private sectors, as well as the trade union rights of workers in the export processing sector. Considering the lack of progress observed, the evident lack of will from the Government to make sure that things moved forward, the worsening of the situation and the numerous acts of violence, the Worker members proposed the inclusion of this case in a special paragraph in the Committee's report.

The Government representative of Guatemala welcomed the conclusions of the Committee and accepted the invitation for a tripartite mission to visit the country. He hoped that the tripartite mission would make firm proposals for solutions to the existing problems. He also hoped that the Government would be able to report on the positive progress made with ILO technical assistance next year.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative (Minister of Labour and Social Security) declared his firm conviction that the mechanisms of control on the application of international standards that the ILO had put in place created an important mechanism for cooperation for the country. The observations of the Committee of Experts were objective, sincere and useful in order to strengthen the institutional regime, the governance and the democracy of Guatemala. The correct utilization of the observations of the Committee of Experts permitted the Government and the social partners to position themselves so that they do not lose sight of the true sense of international labour legislation.

The speaker recalled that Guatemala has faced significant obstacles in its history of confrontation and ideological intolerance. The advances that have been presented in the observations of the Committee of Experts seem small, but in Guatemala constituted true progress if one takes into account the profound problems that have to be confronted by means of effective social dialogue. In order to continue advancing, there was a need to count on the support of the Committee, the Conference, the Employers, and principally the trade unions.

In relation to the observations of the Committee of Experts, the speaker enthusiastically expressed the recognition of the sincere political will of the Government to collaborate with the ILO during the direct contacts mission conducted in 2004 and the positive assessment of the commitments made by the Government. With this sentiment the Government representative stated that his Government has promoted the integration and the function of the Tripartite Commission of International Affairs, which has met and worked in uninterrupted form from 2004 to the present and has obtained advances in the consultation and agreement for the creation of a mechanism of "immediate intervention" in order to examine the complaints within the competence of the Committee on Freedom of Association and the observations on the application of international conventions, that will begin to function soon. The complaints that are not sent directly to the ILO, except in the instance of problems of national interpretation, can be resolved in the country. Likewise, the Government analysed with the employers and trade unions the necessary legal reforms to overcome the problems that they had with the reforms of 2003, in particular the existence in the national penal legislation of provisions against freedom of association principles. The Government looked to address the aspects indicated by the Committee of Experts in relation to ILO Conventions Nos. 87 and 98, the eligibility requirements for becoming a trade union leader, the legal criteria to establish the necessary votes to call a strike and the legal definition of essential services in relation to the exercise of the right to strike. In this respect, the Tripartite Commission has arrived at a consensus to undertake the legal reforms necessary that permit adaptation of the Labour Code to the relevant international standards on discrimination in employment and occupation. In this sense, the Government has presented a proposal to Congress for its approval. Many of the problems identified by the Committee of Experts have been resolved through laws that have amended problematic provisions, as in the case of Government Decree 700/2003.

In relation to the commitments made before the direct contacts mission, the Government representative stated that his Government has met all of those and noted concrete advances in the approval of initiatives for legal reform that the Tripartite Commission had accepted and requested the assistance of the Office, in order to organize the first national seminar on labour rights and freedom of association.

With respect to the competence of labour inspection regarding trade union rights of civil servants, the labour inspection is competent to hear complaints of violations of trade union rights of public employees and act as a mediator, as has been affirmed in various rulings of the Tribunal of Conflict of Jurisdiction of the Supreme Court of Guatemala. The mechanism to deal with this was actually being used to obtain an alternative solution to collective conflicts between public sector workers and their employers.

With regard to the creation of trade unions in industry, the speaker noted that it was only a problem of interpretation of the applicable legislation, and that section 215 of the Labour Code, that did not violate any principle of freedom of association by providing that in order to form and industry trade union, at the branch level, workers can establish unions at the enterprise level so long as they were all of a similar nature. If a union movement did not have a sufficient number of members to establish an industry trade union they could then establish an enterprise union where they could group with a variety of enterprises of the same nature, and where they needed only 20 workers. If today no such union has been established, this was because the trade union movement was not as yet sufficiently developed.

With respect to the imbalance between trade unions and solidarist associations, the speaker noted the operational deficiencies in tabulating the real number of active trade unions and their affiliates. The Government has worked to overcome these deficiencies in a project to systemize the labour register, but it would take time to complete this project due to the lack of funds. The speaker requested the support of the Office in finalizing this project. The indicator of the number of solidarist associations and their affiliates was a result of a unilateral declaration of these associations although there were no objective elements to confirms that there was in practice violation of trade union rights.

The speaker recognized the existence of certain institutional weaknesses in Guatemala for this type of crime. The acts of violence have diminished considerably and the Government supported the interventions of the authorities to complete their investigations quickly and effectively. The speaker noted that the Government was considering a protection mechanism recommended by the direct contacts mission in 2004. In closing, the speaker observed that the Committee of Experts had recognized the efforts of the Government by listing the country among those who had made progress. He requested that the case of Guatemala should not be mentioned in a special paragraph since this would not contribute to the strengthening of national institutions.

The Worker members indicated that, although the information presented by the Government of Guatemala tended to show progress, the reality refuted these assertions. The changes mentioned by the Committee of Experts in its report should be greeted with caution, taking into account the new facts which reinforced the concerns raised by the many elements that demonstrated the persistence of the violation of Convention No. 87 in Guatemala. While, according to the report of the Committee of Experts, the labour inspectorate would have the power to impose sanctions in case of violation of trade union rights, in fact the Constitutional Court had restricted this power in August 2004 and the labour inspectorate was often not on the side of the workers during social conflicts. On this point, further information on the staff of the labour inspectorate, the sanctions imposed in case of freedom of association violations and their effective application would be necessary. The Worker members underlined that Act No. 35 of 1996, known as the anti-strike act, still prohibited workers in public services from striking under penalty of imprisonment. This was sufficient to demonstrate that the restrictions of the Guatemalan workers' rights had not yet been lifted.

The Worker members protested against the assertion of the Government that "civil society" organizations tended to show little respect for the institutional means for addressing labour disputes, an assertion which tended, in their view, to discredit the social partners when these claimed the application of the rights and procedures to which they themselves were submitted.

The Worker members underlined that the rule imposing a requirement to be of Guatemalan nationality and working in the enterprise or sector concerned in order to be elected as trade union leader, remained in force although it had been found contrary to Convention No. 87, just like the rule imposing a requirement of 50 per cent plus one of the workers in the sector in order to be able to establish an industry trade union, a fact which created interminable delays or even refusals of trade unions' registration. This situation was in contrast to the assertions of the Government which claimed that the situation had gotten back to normal and attributed the length of the delays to the workers, on the grounds that they "had failed to present documents", an assertion which demonstrated by the way that, in reality, the situation had not yet returned to normal. Moreover, with regard to the "maquila" sector, the Government had mentioned the existence of two trade union organizations, which were really few in relation to the number of enterprises in this sector.

The Worker members also underlined that the confusion which endured on the subject of registration of trade union organizations in the taxation register, on which the Committee on Freedom of Association had already pronounced itself, appeared to allow the carrying out of controls over trade unions at any time. Moreover, the obstacles in the area of collective agreements remained numerous in practice: pressure on trade unionists, arbitrary dismissals of trade unionists, etc., as well as problems already raised with regard to the judicial power such as corruption, influence peddling, lack of vocational training, partiality, unexpected interventions by the Constitutional Court paralysing the action of the Labour Ministry. The Worker members noted a certain incoherence in this respect between the Guatemalan authorities, which had recognized the existence of a structural problem in the administration of justice as a whole, and the comments of the Committee of Experts which gave the impression that the changes made would guarantee an immediate handling of the problems relative to freedom of association. They also raised the incoherence between the announcement of the acquittal of Mr. Rigoberto Dueñas and the new charges brought against him by justice due to an appeal lodged in the Appeals Court, despite the conclusions of the Committee on Freedom of Association, the direct contacts mission and the messages of support by employers rallied in the Coordination Committee of agricultural, commercial, industrial and financial associations (CACIF).

The Worker members stated that the principle "in dubio, pro operario", according to which the most favourable legal rule should apply to workers in case of doubt, was largely refuted in practice as it was more common to decide a case on the basis of often biased legal precedents in contempt of the legislative prerogatives of Congress. They denounced the tendency to systematically take away labour conflicts from the competence of the Labour Ministry in order to bring them before the penal courts so as to prosecute and reprimand trade union leaders by reason of their social action.

The Worker members denounced the persistence of several facts: (i) the climate of violence and the acts which impeded the free exercise of freedom of association as illustrated by the numbers provided by the Government: 42 acts of violence in 2002-03 for example; (ii) the impunity which surrounded the acts of violence committed against trade unionists; and (iii) the persistence of threats and harassment against trade union leaders as demonstrated by the recent repression of the demonstration against the adoption of the free trade treaty, which had been adopted without consultations with the social partners despite its decisive impact on employment. They also denounced the acts of unauthorized entry into the trade union premises of several trade unions on 9, 10 and 11 May 2005, which had not given rise to any investigation, as well as the violence faced by workers in the informal economy, like Julio Rolando Raquel, secretary-general of a trade union, murdered at the end of 2004 without any legal proceedings having been instituted against the perpetrators of this act, an example which was unfortunately part of a very long list.

Finally, the Worker members differentiated themselves in relation to the assessment of the Committee of Experts which was too optimistic in their view, considering that: one could not talk of progress as long as trade unionists were being murdered, harassed or threatened; repression was being aggravated; so many cases (12) remained pending before the Committee on Freedom of Association; so many problems of application of Conventions Nos. 87 and 98 remained in practice.

The Employer members thanked the Government for providing complete and comprehensive information and noted that the ILO's 2004 direct contact mission was successful. They welcomed that the Government extended the mandate of the mission to Convention No.

87. The number of issues dealt with by the Committee of Experts had decreased but a number of problems remained. The Government worked towards solving them through the National Tripartite Committee. It was a central principle of the Convention that freedom of association could only be realized in an atmosphere free from violence and intimidation. The cases of violence against trade unionists, including cases of murder, were entirely unacceptable. While the Government established a Special Public Prosecutor, the results achieved were mixed and there was no information available to determine whether the measures taken were adequate. The Labour Code's requirement that trade union leaders be of Guatemalan origin was not in accordance with the Convention. Regarding the need to have "50 per cent plus one" of those working in an enterprise as a requirement to form an industry trade union, the Employer members stated that that percentage was too high. However, it was unclear on how the rule worked in practice in terms of the ability of smaller unions to engage collective bargaining. As to the right to strike, the position of the Employer members was well known. Due to the different situations from country to country, no single approach could exist in respect to the quorum required to call for a strike. Similarly, concerning essential services in which compulsory arbitration could be imposed, no "one-size- fits-all" approach was possible, as a given service may be essential in one country, but not in another, depending on the respective levels of development. In conclusion, the remaining problems went beyond questions of interpretation and the Government needed to do more to ensure the application of the Convention in law and practice. Further ILO assistance would facilitate the resolution of the outstanding issues.

The Worker member of Guatemala noted that while it was true that the situation in his country was examined in the past because of the persistent failure of the Government to apply ratified ILO Conventions, it was necessary to pursue, perseverance was required to ensure that pending issues were settled. Fifty years after ratifying Convention No. 87, Guatemala continued to prevent the forming of new trade unions in the country, when not seeking to eliminate those that already existed, as had been the case in the National Centre of books and didactic texts "José de Ipiña Ibarra" of the Ministry of Education (CENALTEX) company or in certain communes of Retahuleu, Tecun Human etc.

The speaker mentioned hurdles put in the way of trade unions in the country, even after they had been recognized and legalized by the Ministry of Labour: Leaders threatened, intimidated, persecuted or dismissed. Although, after the direct contact mission's visit the Government decided to free trade unionist Rigoberto Duenas, none of the charges against him actually being sustainable, a high court decided to take legal action against him, completely ignoring the information provided to the Committee of Experts. Secondly, the Committee of Experts received information according to which "the Labour Inspectorate was granted certain jurisdiction in the system of sanctions provided in case of non-respect of trade union freedoms", once it was ascertained that such sanctions had in fact been taken. The Constitutional Court had declare this jurisdiction to be unconstitutional, thereby creating a gap in the applicable law as a result of the disappearance of the jurisdictional body authorized to impose fines.

The speaker pointed out that the workers were the target of various acts of aggression - 122 were recorded in 2004, 68 to date in 2005, of which 12 in recent weeks: The judiciary had shown little diligence - 90 per cent of cases were filed and forgotten. Though in many previous cases, investigations had been opened, as had been the case following the death of trade unionist Julio Raquel, whose own wife has identified the culprits, the Public Prosecutor had not been diligent in any respect.

This demonstrated an absence of judicial capacity and an absence of political will by the Government to act The speaker mentioned that the Government had put obstacles to the opening of the Office of the UN High Commissioner for Human Rights, which demonstrated the lack of will on behalf of the Government to put in place the conditions required for the effective application fo human rights and freedom of association in the country.

The Labour Code clearly provided for the reintegration within 24 hours of a worker who had been dismissed for having formed a trade union, which showed that the problem at the centre of violations of these rights lay in the lack of will by the State to have them respected.-Thus workers had to wait light years for a court to pass verdict on their case, while others charged with other offences were provided with immunity from prosecution by the labour tribunals.

The clauses in section 390 and 430 of the Guatemalan Penal Code considered as penal all labour conflicts involving the workers. At the same time, when a worker pressed charges for flagrant abuses of his rights by an employer, the competent authorities remained silent. If, on the other hand, an employer pressed false charges against a worker, as was the case with the Maria de Lourdes agricultural enterprise, measures were immediately taken against the workers. Many men and women workers in this enterprise had been dismissed for having helped to form a trade union.

In the last two years, Government policy on workers' demonstrations consisted in accusing union leaders of terrorism. The President of the Republic had publicly threatened to imprison leaders at demonstrations. Several cases had confirmed this stance. A demonstration by the pilots' union had led to the imprisonment of 30 union leaders; a demonstration by the street traders' union had led to the imprisonment of 11 union leaders; another demonstration had led to the death of a child; another ended with the eviction of farmers in the Retahuleu district, with several deaths and many incarcerations. During demonstrations against the free trade agreement, thanks to the solidarity shown by the Prosecution for Human Rights, it had been possible to free all the leaders after the police had surrounded the offices where they were meeting and putting them in jail.

In conclusion, the speaker appealed to the solidarity of government and workers around the world, as well as to the ILO, to give Guatemalans the opportunity to live in dignity and obtain justice.

The Employer member of Guatemala expressed satisfaction with the progress noted by the report of the Committee of Experts and by the present Committee itself as being due to the merit of the national authorities and the employers. Progress on Conventions No. 98 and 129 had been clearly emphasized, and there had been positive comments on Convention No. 87. The direct contact mission of May 20045 noted a reduction in violence as well as a real will to submit various issues related to legal reform to tripartite discussion. The Congress of the Republic could then incorporate the national tripartite agreements into national legislation.

In Guatemala, the current climate was favourable to positive and concrete steps being taken to bring national legislation into conformity with international labour Conventions. The Constitutional Court had even recently recognized the competence of the judicial system to take sanctions against non-respect of freedom of association principles. This did not mean to say tha a legal void had existed prior to this regarding the imposition of sanctions, but that the courts could henceforth impose them.

In his opinion, some trade union organizations were taking part in tripartite dialogue while others preferred using the complaints procedure at national level. Events were currently leaning towards some legal issues - which, nevertheless, did not concern constitutional reform of the regulation of the right to strike, on which Convention No. 87 said nothing - being resolved by social dialogue. The ILO should show confidence in the process currently underway in Guatemala. In any case, the exercise of trade union rights had to conform to the law. No illegal practices could be allowed under the cover of freedom association.

The Government member of Norway, speaking also on behalf of the Governments of Denmark, Finland, Iceland and Sweden, noted the information supplied to the direct contact mission by the Special Public Prosecutor's Office, indicating a significant decrease in physical violence, while the number of cases involving threats and coercion had increased considerably. According to the Government, all cases relating to murder and other offences were still at the stage of investigation. This situation was of grave concern. Criminal proceedings were extremely slow and impunity was the norm in cases concerning trade unionists. The Nordic countries emphasized that trade union rights could only be exercised in an atmosphere which is free from violence and coercion. As requested by the Committee of Experts, the Government should be asked to provide information on any offences against trade unionists reported to the Special Prosecutor's Office. It was hoped that the Government would make every effort to ensure full respect for trade union members' human rights and that concrete progress on the above-mentioned point could be noted in the near future.

The Worker member of Panama denounced the violence and aggression shown by the Guatemalan authorities towards the trade union movement. He said that, in a letter addressed to the Vice-President of the Republic of Guatemala, he had condemned 122 acts of aggression committed in 2004 and 68 recorded to date in 2005 (of which 12 had taken place in recent weeks). In Guatemala, illegal armed groups and secret wings of the security services (CIACS) were acting in concert with thee security forces and were partly linked to organized crime and certain employers' organisations. The Prosecutor for Human Rights had condemned both the impunity that CIACS enjoyed and its collusion with the military intelligence services and organized crime. The UN Verification Mission to Guatemala had also declared the situation alarming. CIACS had been blamed in complaints lodged concerning human rights abuses, but no judicial proceedings had been initiated to allow investigations to be opened on these crimes and to find the guilty parties.

As regarded the situation concerning trade unionist Rigoberto Duenas, the speaker was confident that a final solution would soon be found to obtain his release. The Government of Guatemala seemed not to have the political will to address illegal acts against freedom of association and it had to be requested to provide information of complaints that had been lodged.

The Worker member of Costa Rica stated that a purely juridical analysis could not explain the Guatemalan problem. As regarded the trade union situation, the Government had shown itself to be unable to deal with complaints concerning illegal dismissals or violation of collective agreements. Joining other speakers in condemning the situation, he referred to the rigid attitude of the legal system which passed laws contrary to workers' rights and which benefited solidarist associations. The speaker also recalled that legal procedures related to the Mi Terra and El Tesoro estates, to the municipality of Livington and the El Anco estate had been ongoing for many years without producing concrete results. The workers members finally expressed his solidarity with unionist Rigoberto Duenas.

The Government member of El Salvador expressed her understanding of the situation in Guatemala and referred to the statement made by the Government representative. The efforts made by the Government of Guatemala to overcome the difficulties highlighted in the Committee of Experts' observations should be praised. The Office should support such efforts.

The Worker member of Norway recalled that the Committee had asked the Government to rectify breaches of the Convention for many years, and yet, workers in Guatemala continued to be victims of serious violations of labour rights, including the right to strike. It was disturbing to see that the direct contact mission found that threats and use of coercion against workers were increasing considerably. The Government's promises to remedy anti-union practices were thus put in question. The fact that only one per cent of workers in Guatemala were organized was due to the climate of fear that prevailed in the country. Unionists risked losing their jobs and even their life. When a demonstration took place following the Government's approval of the free trade agreement with the United States, which had been concluded without consulting civil society, the armed police and soldiers surrounded the office of a trade union which took part in the demonstration. In May 2005, unknown perpetrators broke into the offices of several trade union organizations. Only information about the organizations was stolen, while valuable equipment was left untouched. Such incidents increased the fear among trade unionists, preventing them from carrying out their democratic trade union rights. The Committee of Experts still listed severe restrictions of freedom of association contrary to the Convention, including section 241 of the Labour Code, regarding the number of workers needed at a workplace to be allowed to call a strike. The same applied to the imposition of compulsory arbitration in cases of public sector strikes of services which are not essential according to the ILO. Despite many promises by the Government to amend the labour laws and the pledges made to the direct contact mission, few measures had been taken. No legal strikes took place in 2004 and the harassment of workers continued, both in the private and public sector. Only if the Labour Code and section 390 of the Penal Code were changed, would the Government's commitment be credible. Finally, the ILO should consider more serious measures to change the situation.

The Government representative reaffirmed the will to continue the efforts recognized by the Committee of Experts and the direct contact mission. His Government intended to continue the fight against corruption. The situation regarding trade unionist Rigoberto Dueñas was being examined by the penal justice system and was not being treated as a case of trade union persecution. The delegation at the present session of the Conference was testimony to the openness to dialogue of his Government since it also included a magistrate of the Supreme Court of Justice and various members of the Congress of the Republic.

The Worker members stated that, considering the elements contained in the Committee of Experts' report together with the situation prevailing in the country, it was unthinkable to conclude that progress had been made in this case. In their view, all the elements mentioned in the discussion showed that the problems persisted and to some extent even worsened.

The Worker members therefore asked that the Committee, in its conclusions, ask the Government to provide a detailed report containing precise answers to all the questions raised by the Committee of Experts regarding the application of Convention No. 87. The Government should also be asked to take, as a matter of urgency, all necessary measures to guarantee the exercise of freedom of association, adopting legislation and ensuring practice in accordance with the Convention.

While recognizing that the technical assistance demanded by the Government could be useful, the Worker members asked that the Government would be requested to provide, in its next report: (1) an assessment of the measures taken by the national tripartite committee, the Special Prosecutor's Office and the labour inspectorate; (2) statistical information indicating the number of registered trade unions and solidarist associations, as well as (3) information on the follow-up measures taken to the related conclusions of the Committee of Freedom of Association.

The Employer members concluded that, while the situation was improving, it was not yet perfect. The Committee of Experts should undertake a full assessment of the situation and the information requested by the Workers members would be useful for that purpose.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative said that the good will of his Government had been demonstrated through such concrete actions as its welcoming, in May, the direct contacts mission, the mandate of which the Government had requested to be extended to cover this Convention. A report on the May mission was currently being prepared. Other actions had included the submission to the competent authorities of all the Conventions, Recommendations and Protocols that had been mentioned in the Committee's report of the current year. Guatemala thus demonstrated that it was strengthening the rule of law, and, in particular, its labour relations system, with a focus on fundamental labour rights. Progress had been made, and would continue to be made in that regard. With respect to the first observation in the Committee's report, the speaker agreed that the effective respect of human rights and public freedoms was essential to guaranteeing trade union rights. Consequently, the Special Prosecutor for crimes committed against journalists and trade union members, since its establishment, had considered 58 cases, of which: 71 per cent were threats; 0.5 per cent were homicides or murders; and 28.5 per cent were other. Of the total number of cases, three involved threats to the lives of trade unionists. Investigations had been conducted accordingly, the perpetrators had been identified and relevant legal action had been initiated. No cases of homicides or injuries of trade unionists had been reported for that year. The new Government Prosecutor had replaced the Special Prosecutor investigating such cases, with the goal of guaranteeing enhanced effectiveness of the prosecutor's role. The speaker said that efforts were continuing to be made to further strengthen the Office of the Public Prosecutor so as to improve the effectiveness of criminal prosecution, a task that required the technical and financial cooperation of various national and international bodies. As follow-up to actions already taken and in order to prevent conflicts, the Ministry of Labour and Social Security had, for that year, created a system to address the obstacles that had arisen, so as to ensure that trade union rights were protected, with the valuable support of the recent direct contacts mission of the ILO. He said that an integrated approach to inspection needed to be adopted, so as to involve not only verification and prevention of labour conflicts, but enforcement of the law in cases of infringements or violations as well. The new sanctions system enhanced the role of labour inspection. In that framework, various complaints had been received, all of which had been handled, and had either resulted in conciliatory dispute resolutions, or suitable sanctions. From 2001 to February 2004, efforts had been made to ensure that labour rights were respected as effectively as possible. The new sanctions system had thus started to work and had already produced a decline in acts of violence against trade unionists.

With respect to the second observation in the Committee's report, the speaker agreed that labour legislation should have more flexible eligibility requirements for becoming a trade union leader. In that respect, an important technical-legal aspect needed to be pointed out. Since 1991, Guatemala's Constitution had been considered to be inconsistent with the Convention, and a request for its amendment had been made. However, that did not appear to be necessary since the Constitution in fact developed the principle of in dubio pro operario in article 106, one of the objectives and consequences of labour law, whereby the standard that prevailed was the one which was most favourable to workers. With respect to the third observation in the Committee's report, he said that the Government had submitted to tripartite consultation the relevance and content of the possible legal reform initiative, which would enable overcoming current limitations in terms of calculating how many workers constituted a majority for a strike to be declared legal. With respect to the fourth observation in the Committee's report, he said that the provision of article 106 of the Constitution was taken into account in that the standard that prevailed was the one which was most favourable to workers, that is, the one which had fewer restrictions, in line with the new provision of section 243 of the Labour Code. He recalled that, in 2002, the Committee had warmly received the new provision on the prohibition of strikes in essential services. In that regard, two court judgements had been pronounced over the past three years: one declared calling a strike illegal, and the other, of significant historic value, declared calling a strike legal. The Committee of Experts, the Conference Committee and the recent direct contacts mission had been extremely useful and provided valuable guidance. The indulgence of the Committee was requested with respect to the points contained in the report, and the Committee should have faith in the Government's ability to further advance trade union rights. He requested technical cooperation from the ILO and welcomed the financial cooperation of certain countries. Lastly, it was important that the Committee bear in mind that the peace process in Guatemala was under way.

The Worker members thanked the Government representative for the information that he had provided. The Conference Committee had examined the case of violations of this Convention almost systematically since the 1980s. Year after year, the Government invoked the history of this country and the difficulties encountered in establishing a democratic government following a long period of totalitarian rule and armed conflict. In 2003, the Government had still referred to the structural crisis in Guatemala. Yet, the years were passing and the problems persisted. In 2001, following the direct contacts mission, some legislative developments had been noted. Since then, the comments made by the Committee of Experts noted a persistent situation which seriously undermined the provisions of the Convention. In practice, there was no progress to note with respect to the main points raised by the Committee of Experts. With regard to the Constitutional requirement that union leaders should be of Guatemalan origin, it was the union by-laws and not the legislation that should set the criteria for the eligibility of union leaders. In this respect, the Committee of Experts noted from the Government's report that there had been no legislative progress in this field. With regard to the requirement that workers had to be working in the enterprise or the occupation in order to be eligible for trade union office, the Committee of Experts had pointed out that it could be in the interests of unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operated, but it had not noted any legislative developments on this matter. With respect to the requirement that, in order to call a strike to obtain the agreement of those working in the enterprise, only the votes cast should be taken into account. However, no improvement had been noted in this regard. Finally, with regard to the imposition of compulsory arbitration without the possibility of having recourse to a strike in the public transport and fuel-related services, the Committee of Experts had indicated that these were not essential services in the strict sense of the term. The Government had said that these decrees had been implicitly repealed in part. But, the Committee of Experts rightly insisted that union rights had to be specifically laid out in the legislation.

The Committee of Experts had been making some of these comments since 1989, that is to say, for 25 years. The legal analysis of this case led to the conclusion that the legislation cited for several years had never been changed. In its observation, the Committee of Experts noted that the Government had submitted its comments to the Committee on Tripartite Affairs and that the Labour Code was currently under reform. The Committee of Experts hoped that it would soon be able to note substantial progress on these matters. However, nothing suggested that a change was forthcoming. In fact, for several years, the Committee of Experts had noted a serious deterioration in the situation, which had worsened in 2003 and 2004, particularly in view of the persistence of impunity in the event of murders and acts of violence, and new cases of death threats and intimidation against trade unionists with the complicity, among others, of the judicial authorities. In this respect, the arbitrary detention of Rigoberto Dueñas, Secretary-General of the General Confederation of Workers of Guatemala (CGTG), for over a year was a good example. Mr. Dueñas was accused of corruption in the Guatemalan Social Security Institute although he completely denied any fraud. Several prominent and respectable employers insisted on his innocence. The members of the ILO direct contacts mission, which had taken place in May 2004, had been able to meet Mr. Dueñas and other imprisoned trade unionists. The imprisonment of Mr. Dueñas derived from the performance of his duties as a union representative. The members of the mission had therefore demanded on 19 May 2004 that he be afforded alternative treatment. Moreover, the period of preventive detention went well beyond the minimum sentences handed down for the offences of which he was accused. In Case No. 2241, the Committee on Freedom of Association had demanded the immediate release of the union leader.

Why was freedom of association not respected in law or practice? Why had those who defended workers been the target of so much injustice? Why were there so many denials of justice in the treatment of the cases? What action was being taken by the special unit created in the Public Prosecutor's Office to improve the effectiveness of criminal investigations of cases relating to trade unionists? Why had the agreement between the United Nations and the Government of Guatemala, signed on 7 January 2004 in New York to establish a commission of inquiry on the existence of illegal entities and clandestine security forces, been rejected by the Guatemalan Congress? The governments and administrations of the country had continually raised the issue of separation of the three branches, a principle that could be respected, but which in no way implied that law and justice should not be respected. In democratic societies, independence was the basis for charging and penalizing those who did not respect the legal procedures. However, in the present case, in the light of the punishments imposed upon those who defended workers and the prison sentences imposed on trade unionists, it could only be concluded that no progress had been made.

The Employer members recalled that the Conference Committee had discussed cases relating to violations of freedom of association in Guatemala for the past ten years, either in relation to this Convention or Convention No. 98. They noted that, in the present case, the Committee of Experts had commented on five points, of which three were related to the right to strike, which was not covered by the present Convention. Nevertheless, two of the issues raised by the Committee of Experts did indeed deserve the attention of the Conference Committee. The first of these points concerned serious acts of violence against trade unionists, including cases of murders and death threats, which were entirely unacceptable. According to the Government, a special unit had been established in the Public Prosecutor's Office and had begun operations with a view to improving the effectiveness of investigations into acts of violence and murders of trade unionists. The Government representative had also said that since 2002 there had been no new reported cases of violence or the murder of trade unionists. The Employer members also recalled that the Committee on Freedom of Association had not reported any new cases. They nevertheless shared the deep concern of the trade unions with regard to this situation and recalled that a climate of violence and pressure was not conducive to the exercise to the rights related to freedom of association. They further noted the statement by the Government representative that the special unit had already dealt with 58 cases and that labour inspectors had special orders to investigate cases of violence against trade unionists. However, the Employer members did not believe that they were in conditions to determine whether these measures were adequate in practice.

In recognition of the fact that Guatemala was still suffering the consequences of a long civil war, they endorsed the request by the Committee of Experts for further information on the outcome of the work of the special unit. They also noted the direct contacts mission that had taken place recently and called upon the Government to provide a detailed report relating to the results of the mission. Although the Government had already indicated its willingness to take the appropriate measures to the Conference Committee in 2002, they considered that the Government should once again be called upon to take the necessary measures to eradicate all threats of violence against trade unionists. With regard to the requirement under the Constitution of being of Guatemalan origin in order to be a trade union leader and to be actually working in the enterprise or occupation to be eligible for trade union office, they recalled that this was not in accordance with the Convention. In this regard, they noted the Government representative's statement according to which the Constitution stipulated that, in the event of conflict between two labour law provisions, the most favourable provision to the worker was applicable. However, they wondered whether another more favourable position existed on this particular subject, as they only had knowledge of the provisions contained in the Labour Code, on which the Committee of Experts had based its comments. With regard to the view expressed by the Committee of Experts recognizing that a State might require foreign workers to have resided in a country for a reasonable period before becoming eligible for trade union office, they observed that this was a matter for internal regulation and did not therefore need to be addressed by the legislator. However, the Government could decide to follow the advice provided by the Committee of Experts on this subject and the Government representative had indeed expressed his Government's willingness to do so.

On the subject of the requirement that, in order to call a strike, the workers needed to constitute 50 per cent plus one of those working in the enterprise or industry, the Employer members observed that the Committee of Experts had created its own jurisprudence in this respect. Irrespective of the fact that the Convention did not address the right to strike, they recalled that the issue of the quorum to call a strike was the subject of widely differing regulations in the countries of the world. It was not therefore surprising that the Committee of Experts had not been able to establish a model on this matter which was valid throughout the world. With regard to the question of compulsory arbitration, the Employer members merely wished to recall their well-known position on this matter, particularly in relation to the definition of essential services. In conclusion, the Employer members expressed concern about the first two issues raised by the Committee of Experts and hoped that the new Government would be prepared and able to take further measures in this respect. They also hoped that the Committee would not need to examine this case again in the future, although this would depend on the measures adopted by the Government.

The Worker member of Guatemala affirmed that Guatemala was relapsing into violations of freedom of association. Fifty years after the ratification of the Convention, it was not permitted to set up new trade unions in Guatemala and attempts were being made to eliminate those that existed. He confirmed that there was no state policy designed to respect this right. He indicated that there were countless administrative obstacles to setting up trade unions, and finally when workers who had organized achieved the recognition of a trade union, they were threatened, intimidated, persecuted and dismissed. He referred by way of illustration to the propane gas enterprise that belonged to the TOMZA group as an example of the dismantling of trade unions. He stated that the workers of the maquila industries were the victims of major trade union repression. According to the Labour Code, if a worker was dismissed on trade union grounds he should be reinstated within 24 hours, but that nevertheless there were workers who had been waiting for up to eight years for their cases to be resolved, and when there were judicial decisions in favour of workers, they were not observed, as the general environment was one of total impunity. He indicated that, although the Tripartite Commission on International Labour Affairs existed in application of Convention No. 144, there was still no forum where labour disputes were resolved or where the issue of freedom of association was dealt with, although these measures had already been proposed by the workers. Although the Government liked to mention that it had established the Office of the Public Prosecutor for offences against journalists and trade unionists, this body was merely used to deceive the international community. He expressed concern that penalties were being imposed in cases of labour disputes, as in the case of the María de Lourdes plantation. The courts were not impartial and they did not react to the requests of the workers that their rights be respected, although they did so when it was the employers who were making the accusations. Lastly, he referred to imprisoned trade unionists accused of terrorism and to Mr. Rigoberto Dueñas who, he said, had been imprisoned for a year, accused without any evidence of being involved in social security fraud. He indicated that the ILO direct contacts mission had visited them in prison.

The Employer member of Guatemala expressed the belief that the examination of the case of Guatemala by the Committee was premature, as the report of the direct contacts mission that had recently visited the country had not yet been received. He expressed his concern at the comments of the Committee of Experts in paragraph 1 of the observation, as he considered that facts were given as true and proven when they were only complaints and comments conveyed to the Committee of Experts and the Committee on Freedom of Association. He also expressed concern with regard to the content of paragraph 5 which, in addition to referring to a subject that was not covered by the Convention, namely the right to strike, did so by suggesting that the inexistence of strike action and, what was worse, their declaration as being illegal, could be interpreted as a violation of freedom of association and that this interpretation would be contrary to the spirit and the letter of the Convention. He also considered that some of the comments of the Committee of Experts did not take into account the fact that the legal amendments proposed were faced with obstacles of a constitutional nature or relating to public policy. Furthermore, the subjects under discussion were legally questionable and the Committee of Experts should therefore have assessed in a positive manner the respective tripartite consultations held and the discussions before the Congress of the Republic. He concluded by requesting the Worker members to avoid making use of the ILO's supervisory machinery in order to call into question bilateral commercial agreements concluded by the member States of the Organization, as this could only prejudice the credibility of these mechanisms.

An observer representing the Latin American Central of Workers (CLAT) recalled that Mr. Rigoberto Dueñas, the workers' representative at the Guatemalan Social Security Institute, had now been in detention for a year for having denounced the corruption in that organization and that, despite the fact that the offences of which he was accused were not penalized by sentences of imprisonment, he was still under detention. He indicated that the ILO mission that had taken place some days previously had been able to visit the detainee and had collected numerous statements from various quarters claiming that Mr. Dueñas was innocent. He added that the fact that a new Government had just taken office could not be used to justify the unjust detention of workers' representatives and the high level of impunity prevailing in Guatemala. He added that since 1992 his trade union organization had suffered the murders of more than 15 of its officials and that no proceedings had been initiated in respect of these cases and no charges had been brought. At the end of February 2004, some 33 officials from the transport sector had been imprisoned for demonstrating against a decision by the Government of the City of Guatemala, and they had been accused of committing terrorist acts. He concluded by saying that, during the sad years of civil war in Guatemala, when many sectors backed violence as a way of overcoming violence, the trade union organizations promoted COCEPAZ, which had collaborated in bringing peace back to the country.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, noted with great concern the many murders, acts of violence, death threats and intimidations against trade unionists in Guatemala. He welcomed the indication by the Government that a special unit had been established in the Public Prosecutor's Office and had begun operations to improve the efficiency of criminal investigations into acts of violence. He requested the Government to provide information on the activities of this unit in order to assess any improvements in the situation concerning impunity enjoyed by those perpetrating anti-trade union acts. He also welcomed the positive information provided by the Government representative. He expressed the firm hope that the Government would take immediate action to ensure that human rights and fundamental freedoms, which were essential to the exercise of trade union rights, were effectively observed. He noted with particular interest that the Government had requested technical assistance from the ILO and welcomed the visit to the country by the direct contacts mission in May 2004 in relation to Convention No. 98, which was a positive step forward. However, he emphasized the gravity of the situation and pointed out that trade union rights could only be exercised in a climate that was free from violence and pressure. Finally, he hoped that in the near future it would be possible to note that significant progress had been achieved in practice in these areas and stated that the Government's intervention had given confidence of their good intentions.

An observer representing the World Confederation of Labour (WCL) considered that, despite the fact that it was 52 years since Guatemala had ratified the Convention, successive governments had implemented policies and strategies of extermination, repression, persecution, imprisonment and the murder of trade union officials. He indicated that 30 workers had been detained, as confirmed by the ILO direct contacts missions of 2001 and 2004. Those cases demonstrated the impunity and precarious application of justice, and even judicial officials recognized that corruption was the most serious problem facing the judicial authorities. He recalled that it was a year since the detention of the assistant general secretary of the CGTG, Mr. Rigoberto Dueñas, and indicated that several public officials recognized that Mr. Dueñas was no more than a scapegoat. The direct contacts mission had consulted the trade union movement and the employers, which had both confirmed that the detention of Mr. Dueñas was unjust and that in the judicial proceedings against him due process had been infringed, and that it was probably for this reason that the direct contacts mission had requested an alternative to imprisonment for him. He considered that Guatemala was once again at fault with the Committee of Experts and the ILO itself. Successive governments had not had, and still did not have, the political will to protect and respect trade union rights and freedoms. He added that, during the 36 years of civil war, organized trade unionists constituted a mere 5 per cent of the economically active population, while during the 18 years of formal democracy this percentage had fallen to 2.5 per cent. He concluded that dozens of rural trade unions had been destroyed and thousands of workers dismissed, including rural workers, those in the maquila industry and in multinational enterprises, where unionized workers had been waiting for two years since their dismissal without being reinstated in their jobs.

The Worker member of France reiterated, with reference to the comment made by the Employer member of Guatemala, that his country had no interest in the bilateral trade agreements and economic questions that were often raised. For a number of years, Guatemala had constituted a case of continuous and serious violation of this Convention. The situation prevailing in the country was a matter of extreme concern, especially with regard to basic human rights and labour law in particular. The Committee of Experts had also commented on violations relating to the application of Conventions Nos. 29, 100, 111 and 144. This illustrated the situation of workers, which necessarily impinged upon freedom of association. In its observation, the Committee of Experts referred to a significant number of murders, acts of violence, death threats and intimidation against trade unionists, which reflected a general situation of non-compliance with human rights and public freedoms, which were essential for the effective exercise of trade union rights. With respect to the decrees imposing compulsory arbitration without the possibility of having recourse to a strike in many sectors, the Government had indicated in its report that the decrees criticized by the Committee of Experts had been implicitly repealed in part. He called upon the Government to explain this new form of explanation in a much more comprehensible manner. He wondered whether those decrees had been effectively repealed and whether the right to organize specified in the United Nations Covenant on Civil, Political and Social Rights needed to be recalled yet again. The exercise of this right allowed trade unionists to organize their activities. In conclusion, the case of Guatemala constituted a serious case of violation of civil and political freedoms and jeopardized freedom of association. The new Government bore a heavy burden if it wished to achieve observance of basic rights at work, thereby giving effect to the direct contacts mission. It was to be hoped that the good will demonstrated by the Government would be translated into practice and that the measures mentioned would be given effect.

The Worker member of Norway recalled that the case of Guatemala had been discussed for many years and that each year the Government had asked for time to resolve the discrepancies with Conventions Nos. 87 and 98. Yet the workers in Guatemala continued to be the victims of flagrant violations of labour rights, including the right to strike. She welcomed the recent visit to the country by a direct contacts mission and looked forward to hearing the concrete measures proposed. The violations in question included the dismissal of workers because of union activities in both the public and private sectors, including cases in the Ministry of Health and Social Security, the Eskimo plantation in Port Quetzal and the banana firm COBSA. The Government had argued that all cases had been resolved through judicial proceedings, but in practice this merely meant that the claims by workers for reinstatement had been rejected by the courts. The violations of labour rights in the banana sector were well known. On the La Inca plantation, 600 workers had been dismissed under the pretext of lack of productivity, despite the fact that labour inspectors had confirmed that production was absolutely satisfactory. As in many other cases, private security forces had been used to intimidate the workers. Banana production was now being moved to the south coast, where the workers were not organized. The situation in free trade zones in the maquila industry was also well known. Organized workers were dismissed as soon as a trade union was established, which was in violation of the ILO's Conventions and Guatemala's labour laws.

Despite the firm hope expressed by the Committee of Experts that the Government would take prompt action to ensure that fundamental trade union rights were protected, the opposite was actually occurring. With regard to the right to strike, the Committee of Experts had clearly stated that the Government should amend section 241 of its Labour Code, respecting the required number of workers at a workplace to be able to call a strike. In her view it was astonishing that such a violation of the Convention still existed. She also shared the concerns of the Committee of Experts regarding the prohibition of sympathy strikes, the imposition of compulsory arbitration when a strike might occur in the public sector and the declaration of public services as essential, when they clearly were not according to the criteria of the ILO. She emphasized that there had been too many examples of the Government promising to amend labour laws and then failing to do so, while the harassment of workers continued in both the private and public sectors. She therefore called for the Government to assume its responsibility to change the situation and warned that a tripartite system would never function unless the Government changed the labour laws, respected the right to strike and stopped the violations of trade union rights.

The Worker member of Nicaragua expressed his profound concern at the violation of the right to freedom of association and at the related government repression. He confirmed that the current trend was becoming very dangerous, as labour disputes were being treated as criminal offences and penal proceedings were being brought against workers following pressure by governments and employers, including pressure to reform criminal and procedural codes for this purpose. An example was Guatemala, where there were cases of trade union officials belonging to the CGTG who were being accused of terrorist activities in the dispute in the transport sector. This had occurred previously in the banana sector and also in his own country, where he maintained that he had been the victim of repression by so-called "democratic" governments. Persecution was taking place in the export processing zones (EPZs) where there were "blacklists" to prevent workers from becoming organized and establishing trade unions. He endorsed the appeal to free the trade unionists being held prisoner in Guatemala. To conclude, he affirmed that the people of the region were becoming aware of the need to fight for their economic, social and labour rights and affirmed that in this struggle they would surely be supported by the ILO and the international community.

The Worker member of the United States noted that a new Government had been recently elected in Guatemala and he wished the Berger administration every success. However, the election of a new president was not a convincing reason for having accepted and received the ILO direct contacts mission only a couple of weeks before this year's Conference. Moreover, the fact that it was an election year in 2003 did not excuse the lack of progress in Guatemala regarding Conventions Nos. 87 and 98 since the 2002 and 2003 Conferences. In spite of the complaints heard from the Employers and Governments about the presence of Central American countries on this year's list, one should not be surprised that Guatemala was among them. As the Conference Committee had observed over the last 20 years, there were critical and chronic violations of Conventions Nos. 87 and 98. Between 1994 and 2002, the ILO's Committee on Freedom of Association examined 21 Guatemalan cases, nine involving trade unionists as targets of assassinations, disappearances, assaults and death threats, and 12 concerning anti-union dismissals. The Committee of Experts' report in 2004 accurately referred to several examples of how Guatemalan law violated the Convention. He regretted that conventional wisdom continued to circulate, without foundation, that Guatemala's compliance with the Convention substantially improved with the 2001 labour law reforms. The right to strike during the harvest in the rural sector was undermined by section 243 of the Labour Code which gave the Executive the power to prescribe work stoppages that affected economic activities essential to Guatemala. The reform of section 216 required signed and written proof from 20 or more workers to form a union and thereby created a list of pro-union activists susceptible to employer reprisals and imposed a literacy requirement. The law continued to impose a threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. In sectors with thousands of workers, such as agriculture, this was prohibitive. The revision of section 233 violated the Convention by increasing the requirement from two to four unions to form a federation, and from two to four federations to form a confederation. The reform of section 379 imposed liability on individual workers for legal damages resulting from a strike or other collective action and created a chilling effect on the exercise of freedom of association rights.

As noted by the United States State Department in its 2004 Human Rights Report, by the United Nations Verification Mission in Guatemala in its 2001 report and by the Committee on Freedom of Association in paragraph 91 of its November 2001 report, an ineffective labour court, labour inspectorate and enforcement regime fostered an environment of anti-union reprisals and dismissals. The United States State Department report found that, although the Labour Code provided that workers dismissed illegally for exercising union activities should be reinstated within 24 hours, in practice, employers filed a series of appeals or simply defied judicial orders for reinstatement. It should not be a surprise that, according to the Guatemalan Labour Ministry's own statistics, only about 2.3 per cent of the workforce were in registered unions. Nor was it a surprise that, given the labour law regime and labour relations climate, there was a total of two collective bargaining agreements covering only 1,300 workers in the EPZs which employed more than 125,000 workers. Even if all of the de jure violations of the Convention were corrected, there was still the disturbing, current climate of assassinations and death threats directed against trade unionists and impunity for the perpetrators. In 2002, the Inter-American Commission on Human Rights ruled that article 16 of the American Convention on Human Rights, which guaranteed freedom of association, was violated by Guatemala when Government agents, in collaboration with the owners of the plantation "La Exacta" killed three unionists and wounded 11 others. He reminded the Government representative that there had been active death threats directed against trade unionists since 2002, including those who were advocating the innocence of jailed union leader, Rigoberto Dueñas. With respect to the United States Central-American Free Trade Agreement, it only required governments to comply with their national labour laws and did not require any prior harmonization in law or practice with the fundamental ILO Conventions. He asked that the Conference Committee took the strongest and most effective measures in this case since there was much at stake, including the lives of Guatemalan workers.

The Government member of Costa Rica stated that she hoped that the efforts made by the new Government to promote fundamental human rights would be taken into account. She urged the Committee to acknowledge the efforts made by the Government to protect trade unionists and to penalize those who violated their rights. She hoped that the fact would be taken into account that Guatemala was recovering from a situation of war which it had experienced during the previous decade and that it needed time for reconstruction.

The Government representative declared that he had taken due note of the comments made and stated that, in the first place, he wished to refer to the aspects that were related to the observation of the Committee of Experts. He hoped that the documentation provided would shed light on the efforts made to combat the persecution of trade unionists. He indicated that the climate of violence had changed. Some speakers appeared to think that nothing had changed. He called upon them to look at the present from a forward-looking perspective. He maintained that the establishment of the special unit had not been done as a pretext, but was an expression of the will to resolve the problems and to take into account the points raised by the Conference Committee. He said that fundamentally many of the interventions had referred to the past and, even though many things could have been done in a different way in the past, what was important was to see what had been done and what was being done this year. However, he was not trying to say that what had been done was sufficient, as the social situation always required something more. But, he wanted it to be seen that measures were being taken against anti-union activities.

In the second place, he indicated that he wished to refer to matters that were not related to the observation of the Committee of Experts and the cases of the Committee on Freedom of Association, namely the situation of Rigoberto Dueñas and Victoriano Zacarías. He said that Rigoberto Dueñas was facing trial for a common law crime, namely for social security fraud for a very high amount. He had not been detained as a trade unionist, but as a member of the Executive Board of the institution, alongside other persons not related to the trade union, but, for example, to the university. He recalled that corruption was a problem of absolute priority at the national level. He added that he had heard that Rigoberto Dueñas was being treated as a delinquent. He denied that this was the case and said that the accused benefited from full guarantees, as his case had not yet been tried, and enjoyed the presumption of innocence. His detention had been described as arbitrary, but he said an arbitrary detention in his view occurred only when it was not the outcome of a judicial order, and that in the present case an order had been issued by the competent judge. In his view, a case was being raised that bore no relation to the Convention, and it was being said that this case demonstrated anti-union attitudes and that labour disputes were being penalized, the case was being used to call into question the whole system. In his opinion, these allegations were extremely grave. He wondered whether they constituted an attempt to influence the decisions of the judges and to manipulate public opinion. The present Government had succeeded in raising the level of trust in the judicial system. It was therefore very serious to claim that there had been new cases of murders and that strikes were prohibited during harvest times, as this measure had been amended in 2001, as could be seen in the updated Labour Code. In conclusion, he called upon the Committee to strengthen the machinery for the application of international labour standards and declared that in future sessions he hoped to be able to demonstrate the progress made in his country with the collaboration of the ILO.

The Worker members said that there had been no progress in relation to the legislation in Guatemala for many years. The fulfilment of the commitments undertaken by the Government during the direct contacts missions and the tripartite meeting held on 20 May 2004 was still awaited. As indicated by the comments made by the Committee of Experts and the large number of cases dealt with recently by the Committee on Freedom of Association, the situation had deteriorated in practice, as noted by the members of the direct contacts mission. With regard to the case of Mr. Rigoberto Dueñas, a leader of the CGTG, his immediate release was called for, in accordance with the conclusions of Case No. 2241 of the Committee on Freedom of Association. The Worker members contested the statements made by the Government representative on the case of Mr. Dueñas. The arguments put forward were unacceptable and contradicted the findings of the direct contacts mission and the conclusions of the Committee on Freedom of Association. The Government of Guatemala had frequently requested technical assistance from the ILO. The Worker members evidently supported the assistance that could be offered by the ILO to a country to bring its law and practice into conformity with Conventions. In the present case, however, political will was needed, and particularly the will to establish the rule of law and respect for trade union rights. Urgent action was needed. The Worker members therefore called for the Committee's conclusions to be placed in a special paragraph of its report.

The Employer members noted that frequent reference had been made during the discussion to specific cases of individuals about which the Committee knew very little and which were not covered by the report of the Committee of Experts. This placed the Conference Committee in a dilemma, as it moved the discussion away from its traditional basis, which was the report of the Committee of Experts, on which the Worker members in particular often relied in their interventions. In such discussions, the danger arose from the fact that the only source of the information provided was the oral interventions of the members of the Committee. They recalled that this Committee was not a criminal or legal body with competence to establish whether or not alleged facts were true, even though the members of the Committee evidently benefited from the right to free speech. In conclusion, they called upon the Government to continue to strengthen the efforts that were being made to address the problems arising in relation to the application of the Convention and to provide a detailed report on the measures adopted.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative indicated his surprise regarding the fact that his country had been selected in respect to Convention No. 87, since the Committee of Experts had noted in its report the progress made. He expressed his satisfaction for the fact that the Committee of Experts and the Freedom of Association Committee had recognized that amendments to the Labour Code introduced in 2001 complied with many of its requests, and for the fact that it had mentioned the progress made in the country regarding the application of trade union rights. He expressed his country's commitment to continue to collaborate with the supervisory mechanisms of the ILO.

The speaker recognized that the enjoyment of freedom of association in Guatemala had not always been satisfactory, since, from 1954 to 1985, various authoritarian regimes had succeeded each other and there had been an internal military conflict which had lasted until 1996 and had been accompanied by the breakdown of the domocratic constitutional order and of the rule of law. However, in 1986, a democratic transition had been initiated, which had made possible the signing of the Peace Accord of December 1996 and had supported international cooperation. Account had to be taken of the fact that rebuilding the institutional legal order was a task requiring years. In this regard, the reforms recently introduced in the country to guarantee the freedom of association and other labour rights through the amendment of the Labour Code and the reinforcement of the Ministry of Labour were important. The speaker stressed that his predecessor had a vast experience with trade unions and had initiated a movement to defend workers which he would keep up, having defended the workers before from the Congress of the Republic, the Office of the Ombudsperson and the Mission of the United Nations for the Verification of the Peace Accords (MINUGUA). This had allowed to strengthen the verification of the respect of labour rights, the decentralization and increase of the resources of the Ministry of Labour and the ability to set up procedures for the registration of trade union organizations.

One of the major transformations achieved through this labour reform was that it had given the Ministry of Labour the capacity to sanction, that is to facilitate the sanctioning and protection of labour rights through administrative procedures. Last year, on the occasion of the direct contacts mission made to his country by the Committee on Freedom of Association, the Committee had qualified this reform as encouraging with a view to the application in law as well as in practice of Convention No. 87, particularly in Case No. 1970. As an example, the speaker mentioned that in January of this year a sanctions unit had been created, which had made possible the imposition of fines to 800 enterprises which had violated the relevant provisions (40 enterprises in January and 350 in May). In this manner, the Ministry of Labour had increased its efficiency to rectify situations which the labour courts would have taken months or years to resolve.

For its part, the judicial power was aware that international labour standards were indispensable, which was why in April 2002 it had requested technical assistance from the ILO and signed a cooperation agreement to that effect. Moreover, with the assistance of the MINUGUA, the Government was reforming the judicial apparatus of the country to strengthen labour justice. In relation to the fight against labour impunity, the Committee on Freedom of Association had referred to Case No. 1970 in its report of November 2000 and had noted with interest that, prompted by the direct contacts mission, a special unit of the General Ministry, aimed at improving the efficiency of investigations of crimes committed against trade unionists, had begun to function in June of the same year. He indicated that the Government reiterated its commitment to continue to respect the recommendations of the aforementioned mission and of the Committee on Freedom of Association, as well as the observations of the Committee of Experts.

To this effect, on 8 February 2002, a high-level labour committee had been created, integrating ministers and trade union representatives of the Popular and Trade Union Action Unit (UASP). It would deal, amongst other topics, with the new statute of the public service and the right to strike of state employees, which would respect the modifications emphasized by the Committee of Experts, including the repeal of Legislative Decree No. 35-96. In reference to the comments made by the Committee relative to the application of section 390, paragraph 2, of the Penal Code, the speaker confirmed that it had been abridged by the suppression of section 257 of the Labour Code. Moreover, he emphasized that, since the peace accords of 1996, the Government had prohibited the violation of human rights and had promised to construct an institutional democracy that would guarantee the effective exercise of human rights and fundamental liberties, including freedom of association. Aware that the respect of labour standards and rights was not only guaranteed through sanctions but also through initiatives, the speaker indicated having rewarded the Association of Corporations of Exporters of Non-Traditional Products for the concern it had shown regarding labour rights. It also resorted to dialogue with social partners which the Government remained ready to favour through tripartism, and specifically with the technical assistance of the ILO. The speaker hoped that, like the direct contacts mission and the Committee of Freedom of Association, the Committee would note with satisfaction the progress made in the country.

The Employer members observed that the Government had showed its preparedness to take appropriate measures following the comments that had been formulated in previous years by the Conference Committee, the direct contacts mission in 2001 and the discussions held in the Conference Committee. The Government had amended its legislation, which had been the subject of a long list of criticisms by the Committee of Experts. The Committee of Experts had noted the legislative amendments with satisfaction, which represented the expression of highest appreciation. Most of the amendments requested by the Committee of Experts in the past had referred to the right to strike. The Employer members were of the opinion that the Government would not have been obliged to introduce these amendments to comply with the provisions of the Convention, since it was the well-known employers' position that the right to strike did not derive from this Convention. It was, however, to the Government's discretion to decide upon its national legislation.

Only two issues remained the object of criticism by the Committee of Experts. The first issue concerned the requirement of being of Guatemalan nationality to be eligible to join the trade union executive committee. The Employer members noted the Government's indication that this requirement derived from the Constitution. Although it would take time to amend the Constitution, it was nonetheless possible. The Employer members observed that the Government representative had not given any indication in this regard. The second point criticized by the Committee of Experts referred to the requirement to be actually working in the enterprise or occupation in order to be eligible for trade union office. This provision was also known from other countries. Nevertheless, it was contrary to freedom of association, since it clearly was for the trade unions (and the employers' association) to determine who should take office. The Employer members believed that this had to be introduced in the national legislation.

Turning to the Committee of Experts' view on the right to strike, including its definition of essential services, the Employer members recalled their position that the right to strike did not derive from the Convention. In this regard, they did not support the Committee of Experts.

As to the practical application of the Convention, the Employer members observed that the prevailing political climate, characterized by administrative repression of trade unions, did not promote the exercise of trade union rights. The existing unfavourable political climate should therefore be reflected in the conclusions of the Conference Committee. The Employer members indicated that employers' associations were also the object of administrative harassment. A complaint had been submitted by some employers' associations and the Committee on Freedom of Association would examine it in the future. In conclusion, the Employer members did not consider the Convention to be applied in practice. Therefore, the Government had to take appropriate action to allow social partners to exercise their rights enshrined in Convention No. 87.

The Worker members thanked the Government representative of Guatemala for his explanations. This case had been on the agenda of this Committee since the 1980s. Given the fact that the situation was still far from being in conformity with the Convention, the Worker members considered it necessary to discuss it once again. The peace agreements signed in Guatemala in 1996 seemed to permit a passage to a new stage in the process of the pacification of the country. Unfortunately, genuine peace was possible only if social justice was guaranteed. But over the past few years, it appeared that social justice had not been necessarily respected. The exercise of freedom of association was almost systematically hampered. Following numerous cases of violation of freedom of association and multiple complaints examined by the Committee on Freedom of Association over the past few years, a direct contacts mission visited Guatemala in April 2001. This Committee once again discussed the case at the 89th Session of the International Labour Conference. Since then, Ms. Hilani, special representative of the Secretary-General of the United Nations, visited Guatemala in order to analyse the delicate situation of human rights, particularly trade union rights. In addition, over the past few months, other violations of the Convention, had been reported to the Committee on Freedom of Association.

In its latest report, the Committee of Experts highlighted legislative matters and problems of practical application of the Convention. Regarding the legislation, certain gains obtained by the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April 2001 and Legislative Decree No. 18-2001 of May 2001 led to progress on certain points. However, the Committee of Experts pointed out that other legislative provisions were still not in conformity with the Convention. Moreover, it requested particulars on the essential aspects related to the exercise of freedom of association which concerned provisions of the Penal Code imposing penalties of imprisonment on anyone engaged in acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Reference was also made to compulsory arbitration without the possibility of resorting to a strike in public services which were not essential in the strict sense of the term.

Regarding the application of the Convention in practice, the numerous cases examined by the Committee on Freedom of Association which were referred to in the Committee of Experts' report and evaluated by the direct contacts mission in the country, were unfortunately eloquent. These concerned in particular acts of anti-union discrimination, threats and violence against trade union leaders, violation of rights to bargain collectively and searches of trade union premises.

Regarding the murders of trade union leaders reported in Case No. 1970, the Worker members pointed out that the Committee on Freedom of Association concluded last March that it was important that the procedures relating to acts of discrimination should advance rapidly, since excessive delay was equivalent to a denial of justice. The Committee of Experts emphasized that trade union rights could be exercised only in a climate which was free of violence and pressure. It expressed the very firm hope that the Government would make every effort to ensure the effective observance of human rights and of fundamental freedoms essential to the exercise of trade union rights.

The Worker members wondered whether it was possible to guarantee fundamental human rights in circumstances where the workers' organizations were subject to searches, threats, dissolutions and where the right to strike was systematically under attack.

The Worker members shared the request reiterated by the Committee of Experts for the Government to ensure the application of the principles of the Convention. The Government should, without delay, take the necessary measures with a view to ensuring the following:

- amendment, without further delay, of legislative provisions which infringed the provisions of Convention No. 87;

- the provision, as early as possible, of the information requested by the Committee of Experts as regards legislative provisions concerning arbitration and those of the Penal Code concerning penalties of imprisonment in the case of acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country;

- the provision of a genuine protection of trade union leaders and their activities to ensure them of a climate of peace and security, that guaranteed an impartial, rapid and efficient judicial system and reinforced the social dialogue;

- the lifting of the impunity protecting the perpetrators of physical and intellectual anti-trade unions acts, which included numerous cases of threats against trade union leaders.

The Worker members recalled that the Preamble to the ILO Constitution emphasized that genuine peace could be established only if it was based on social justice. Social justice depended on the free exercise of a fundamental right, freedom of association, which in turn was closely related to the effective observance of human rights and fundamental freedoms.

The Worker member of Guatemala stated that many of the members present at this meeting had witnessed and heard, to the point of saturation, constant denunciations of violations of the human rights of Guatemalan workers, especially those pertaining to freedom of association. He therefore thanked the Committee on Freedom of Association for sending a direct contacts mission last year in order to verify in situ the effect given to the recommendations of Case No. 1970. This case, which was far from being an isolated one, related, among other allegations, to acts of violence, death threats, assassinations, breaking and entry, and attempted abductions, acts of anti-union discrimination, physical aggressions and other violations. The Committee on Freedom of Association had expressed itself carefully on this tragic situation and had stated that it had been profoundly concerned by the excessive length of the proceedings which amounted to a denial of justice. If one day justice were done, it would often be after about three to eight years of slow, non-transparent and exhausting procedures destined to discourage and destruct the unions which had become distrustful of the law, justice and democracy. No doubt, the workers did not ignore the legal and theoretical reforms which had been mentioned on the occasion of the direct contacts mission and introduced by Legislative Decrees Nos. 13 and 18 of 2001 by which the Labour Code had been amended. However, these reforms had been introduced and approved without consulting the trade union movement, contrary to Convention No. 87 and the requests that the ILO had formulated already many years ago. Moreover, they had not led to the introduction of the fundamental changes that had been hoped for and that the national trade union movement had incorporated in the draft reform of the Labour Code to which the previous Labour Minister had adhered at the 88th Session of the Conference. Since the democratic transition had started in Guatemala, eight labour ministers had participated in this Committee, conscious of the tragic conditions surrounding the trade union movement of Guatemala especially in the sectors of agriculture, textiles and public service at the municipal level. The anti-union dismissals, like those complained of in Case No. 1970, remained unpunished in spite of the court orders of readmission. The ministers in charge of implementing the law did not have the necessary support from the police to oblige the employers to execute the court orders but did have such support when it came to proceeding with the removal of workers. The exclusion and privileges were reprehensible and justice delayed was no justice at all. The suffering inflicted upon workers by the violation of freedom of association was not demonstrated only in Case No. 1970, since the Committee on Freedom of Association had heard a whole series of denunciations of violations of Convention No. 87, namely for unjustified dismissals with use of force, abductions and death threats of trade union leaders, and assassinations which had been left unpunished. In the public sector, the Government had issued a government agreement (No. 60 of 2002), which prohibited not only strikes but also collective bargaining in this sector, in order to satisfy the commitments made towards the International Monetary Fund. The corruption and impunity prevailing in the country manifestly put into question the legitimacy of democratic institutions and severely hurt the Guatemalan trade union movement. The speaker thanked the various solidarity missions of the trade union movement all over the world, and asked for the inclusion of his country in a special paragraph.

Another Worker member of Guatemala referred to pages 267-269 of the Committee of Experts' report and stated that the amendments to the Labour Code aimed at adapting its provisions to the Committee of Experts' recommendations did not signify that freedom of association was respected in the country. Indeed, the country had not yet adjusted its legislation on all the recommended points. More particularly, it was necessary to repeal the provision of the Penal Code (section 390(2)) imposing a penalty of imprisonment of 1-5 years for anyone engaged in acts aimed at paralysing or disrupting the running of enterprises which contributed to economic development of the country, with the intention of causing damage to national production. Similarly, it was necessary to repeal the requirement of compulsory arbitration before resorting to a strike in public services such as public transport and energy provision, which were not essential in the strict sense of the term, as well as the prohibition of inter-union sympathy strikes. He underlined the fact that the Government had submitted a series of amendments to the Labour Code which were prejudicial to workers, in that they were denaturalizing the procedural labour law, enlarging the powers of judges and jurisdictional functions of the Ministry of Labour, thus worsening the labour rights situation. Freedom of association only existed on paper, since in practice, workers were victims of dismissals and changes that worsened their conditions of work. The lack of conformity of the national legislation with the international instruments was a violation of Convention No. 87: workers could not establish trade unions, public and private employees were victims of persecutions and threats for their union activities, and certain workers had to wait for more than seven years to be reinstated in their jobs, having been dismissed without a valid reason. In this climate of labour impunity, three workers of the enterprise "Exacta S.A." had been murdered by the national police, and the Public Prosecutor had failed to prosecute those responsible, claiming there was insufficient proof of their guilt. All these allegations were submitted in cases Nos. 2017 and 2202 treated by the Committee on Freedom of Association. The speaker suggested that this Committee should include the case of Guatemala in a special paragraph of its report.

The Worker member of the United States wanted, before proceeding with his intervention, to respectfully acknowledge the tragic passing away of Juan Francisco Alfaro, former Guatemalan Labour Minister and former General Secretary of the United Trade Union Confederation of Guatemala. His death was an irreparable loss for the inter-American and international labour movement. In spite of the conventional wisdom that somehow Guatemala had improved due to the 2001 labour law reforms and due to the interruption of the continued review of this country under the United States General System of Trade Preferences, Guatemala's violations of Convention No. 87 had only worsened. The right to strike in the rural sector could be undercut by the power of the executive to proscribe work stoppages which seriously affected the economic activities essential to the nation. Despite the reform of section 255 of the Labour Code, a judge still had the power to despatch the police to guarantee strike replacement as a "precautionary measure". The new section 216 required written proof of the will of 20 or more workers to form a union, thus making for a written disclosure of pro-union activists and imposing a literacy requirement. The Labour Code imposed a potentially prohibitive threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. Section 233 increased the requirement from two to four unions to form a federation and from two to four federations to form a confederation. Finally, the new section 379 imposing liability on individual workers for legal damages resulting from a strike or other collective action created a chilling effect. More importantly, de facto violations of Convention No. 87 persisted due to the state of general impunity for the perpetrators of assassinations and death threats directed against Guatemalan trade unionists, including José Pinzon who had fortunately survived and was present today. This was reflected in paragraphs 85-89 of the November 2001 Report of the Committee on Freedom of Association (CFA). The Guatemalan Labour Justice system condoned this general state of impunity with respect to anti-union discrimination as the Committee on Freedom of Association had concluded in paragraph 91 of its November 2001 report, noting the findings of the ILO contacts mission of 2001. The Guatemalan Labour Ministry itself had admitted in November of last year that very few cases of anti-union dismissals had been sanctioned with financial penalties, even fewer of which had been actually paid. He joined with the other members in calling for a special paragraph in this case.

The Worker member of Norway spoke on behalf of the workers in the Nordic group, who were well acquainted with the oppression of Guatemalan workers by their own Government. Trade unions in Guatemala sent to the Nordic national organizations frequent messages of murders, death threats and serious injuries. On paper the situation might look better as issues earlier raised by the Committee of Experts seemed to have been settled through a number of legislative decrees adopted by the Guatemalan Congress, thus bringing the Labour Code more into conformity with Convention No. 87. There were however still provisions which were not in conformity with the Convention and she shared the Committee of Experts' concern that provisions in the Penal Code might still have full effect in spite of the same provisions having been repealed from the Labour Code. This related, for instance, to provisions giving the right to arrest and put on trial anyone publicly attempting a strike or unlawful work stoppage. The Government had just provided assurances on this matter and she looked forward to seeing a change in practice on the part of the Government. Her greatest concern, however, was whether all these new provisions were just lip service. Workers were being threatened, assassinated, and still dismissed for attempting to set up unions, and bargain collectively. The labour courts were ineffective and cases brought before them could drag on for up to five years. The labour inspectors, far from ensuring respect for workers' rights, were often more likely to persuade workers to renounce their rights. In some cases when the workers requested the inspection of the workplace, the inspectors called the employers in advance to warn them of their visit. These days the State itself was guilty of serious violations of labour rights. One hundred seventy workers had been fired in the National Banco Crédito Hipotecario with immediate effect and without consulting the judge in charge of reviewing the institution. In order to avoid communication between the workers and the union, telephone lines and internal electronic mail had been cut and the number of guards had been doubled. In the export processing zones the firms established were notorious for anti-union behaviour and there were no collective agreements for any of the more than 80,000 workers in this sector. Workers who attempted to organize a union were fired immediately. Factories were moved to a new location or given a new name so that workers who wished to organize could be dismissed and new more compliant workers hired for the same jobs. She fully shared the concerns of the Committee of Experts regarding murders, acts of violence and death threats against trade union members as reported by the Committee on Freedom of Association. Through cooperation with organizations like UNSITRAGUA, it had been demonstrated that discrepancies between the newly adopted legislation and the practices of the Government were worse than outsiders were able to comprehend. A country that characterized itself as democratic and had ratified all ILO core Conventions could not allow such actions to take place. This showed lack of respect for the ILO, and contempt towards Guatemalan workers and their fundamental rights. This Committee must urge the Government of Guatemala to bring its practice into conformity with both Convention No. 87 and its own labour legislation. The situation was so serious that she joined the other members in asking that Guatemala be included in a special paragraph.

The Worker member of Brazil recalled that this case had already been discussed by the Committee on eight occasions. The peace accord announced in 1996 had created the hope that Convention No. 87 could finally be fully applied in Guatemala. However, since that date, anti-trade union acts had not ceased to increase. He stated that it must be concluded, in the light of the comments made by the supervisory machinery, that the peace accord did not have any effect in the world of work. The Congress of the Republic of Guatemala had begun a reform of the Labour Code just before the beginning of the 2001 session of the Conference, and had thus modified many sections that were the object of comments made by the Committee of Experts. However, many of the criticized sections remained unchanged, in particular: the imposition of compulsory arbitration (Decree Law Nos. 71-86 and 35-96), the decree maintaining the surveillance service upon the creation of a trade union which could be the source of the interference by the executive authority, the restriction of the participation of foreign workers in the executive committees of trade unions; the requirement of a minimum number of workers for the formation of a trade union, which remained higher than that accepted by the Committee on Freedom of Association; the authority given to the Executive in the registration of trade unions; and the numerical requirements for the creation of federations and confederations. Furthermore, the protection of elected leaders provided for by the amended section 209 of the Labour Code remained insufficient to ensure the application of Article 11 of the Convention. Regarding the possibility of interventions of judicial and executive authorities in the exercise of the right to strike in the essential public services sector (section 243 of the Labour Code), while the amendments introduced appeared to have reduced the scope of this intervention, the Committee of Experts had not specified to what extent the situation had actually changed. The power left to the Executive in this field made it easily conceivable that the police forces would continue to limit the exercise of the right to strike. Moreover, he recalled the frequency with which trade union leaders were threatened, intimidated or detained. The Committee on Freedom of Association had indicated in this regard that the frequent imprisonment of leaders in these circumstances was typical of a restricted situation of freedom of association. Finally, he emphasized, as was done by the direct contacts mission and as was also brought out by the numerous complaints filed to the Committee on Freedom of Association, the slowness with which justical decisions were rendered. In this respect the Committee on Freedom of Association had specified that late justice was a denial of justice. Under these circumstances, the Government should take real action, including measures of judicial reform, so as to ensure the effective application of the rights and principles contained in international Conventions that it had undertaken to respect. The speaker supported the request made to include the case in a special paragraph.

The Worker member of Spain stated that in this case the Committee found itself faced with a typical and frequent situation of a discrepancy between legislation and reality. The legislation reflected in the first paragraphs of the report was due in part to the direct contacts mission headed by the ILO, which in fact had proved to be efficient in changing the legislation, but not the reality. This resulted in a manifest hypocrisy, for legislation that was not reflected in reality was a dead letter. The reality included, in the constant violation of trade union rights on all levels, the infringement of the right to strike and social injustice. Contrary to what had been stated by the Employer members, the speaker affirmed that the right to strike was covered by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and along with the right to bargain collectively, constituted one of the pillars of trade union rights. The systematic violation of the right to strike in Guatemala was due in part to the imposition of compulsory arbitration. In this respect, the speaker demanded that this country be included in a special paragraph.

The Government member of Mexico stated that since the previous session of this Committee, when the Government of Guatemala had been invited to report on the application of the recommendations made by the Committee of Experts, the Government had observed progress in the reform of the Labour Code introduced by the Guatemalan Congress to bring the national legislation in line with Convention No. 87 and, in particular, to comply with the requests that had been formulated by the Committee for a long time. She welcomed that the Experts had mentioned in their report the amendments to the Labour Code which had allowed to adapt internal legislation to the aforementioned instrument. She also noted with interest the commitment of the Government of Guatemala to continue the implementation of this reform and to give workers the necessary means to effectively exercise their labour rights. As in the previous year, the speaker asked that the progress mentioned by the Committee of Experts and confirmed by the direct contacts mission be included in the conclusions of this Committee. She encouraged the Government of Guatemala to maintain its close collaboration with the Office and with the supervisory bodies of the ILO, in the aim of obtaining a true guarantee of the respect of labour rights in the country.

The Worker member of Colombia stated that Guatemala was a country in which 75 per cent of the population was concentrated in the rural area, of which almost 80 per cent lived under the poverty threshold and many died of starvation. Sixty-seven per cent of the population worked in the informal sector. He stated that though it was certain that the Committee of Experts had welcomed the fact that the Government of Guatemala had harmonized its labour legislation with the instruments of the ILO, it was no less certain that in the present day, complex situations preventing the full development of freedom of association in Guatemala still prevailed. Specifically, last year, the Government had expressed its respect to the supervisory bodies of the ILO and had acknowledged the need to improve labour conditions in the country. Despite this, words did not always coincide with facts, which was why Guatemalan workers did not stop asking for assistance from the global trade union movement in the struggle against anti-trade union acts such as the breaking and entering of trade union premises and the detention, disappearance and assassination of trade unionists. The Workers were used to hearing in this forum promises from the Government representatives according to which legislation would be brought into conformity and workers' rights would be protected. Unfortunately, years went by and the situation remained the same. For this reason the Government of Guatemala should take the necessary measures to answer the workers' requests and fully ensure the right to establish organizations, to bargain collectively and to strike. Nowadays, poverty, unemployment and social instability have aggravated, the number of poor and marginalized people has increased and the number of rich people has decreased.

The Government representative, after having listened to the Worker and Employer members, reiterated his previous statement and stressed, more specifically, that his country was about to leave behind an exclusionary political system that had persisted for more than 100 years, and had given rise to the internal armed conflict, which was why there was no easy way to eradicate the culture of confrontation persisting between social partners, on the one hand, and between social partners and the institutions on the other. In respect of what had been put into question, he referred again to the concrete measures already take by the Special Prosecutor constituted in order to punish crimes perpetrated against trade union leaders, to the creation of the Sanctions Unit responsible for ensuring workers' rights and to the labour law reform. He added that in this effort, his Government had invited the Special Representative of the Secretary-General of the United Nations for the Human Rights Defenders and had undertaken a policy of human rights reparation under which the State had spent a huge amount in order to compensate numerous workers of the Ministry of Culture who had been unfairly dismissed. The speaker again stressed on social justice and the need to rely on ILO technical assistance in order to implement international Conventions. Finally, he referred to: the amendments that were still pending and had been requested by the Committee of Experts, concerning the requirement to be of Guatemalan nationality in order to participate in the creation of an executive committee of a trade union and the obligation to be a worker of an enterprise or of the concrete economic activity to be eligible as a trade union leader; as well as the doubts expressed concerning the enforcement of section 390, paragraph 2, of the Penal Code. He stated that his Government had committed itself to submit these points to a tripartite committee, by virtue of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

The Worker members stated that they could not but observe the existence of serious problems related to the application of Convention No. 87 in Guatemala and the criminalization of trade union activities. The infringements noted concerned the application of the Convention in law as well as in practice. Urgent measures had to be taken. Regarding the legislation, the Government must take steps to amend without delay the provisions violating respective Articles of Convention No. 87 and the right to strike as recognized by the Committee on Freedom of Association; to provide at the earliest possible date the information requested by the Committee of Experts concerning the provisions of the Penal Code imposing compulsory arbitration and a penalty of imprisonment in case of paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Regarding the application of the Convention in practice, the Government must prove a true will to protect trade union leaders and their activities, by ensuring a climate of peace and security, as well as the existence of an impartial, rapid and efficient judicial system, and reinforcing social dialogue. Finally, the Government must lift the impunity which protected the perpetrators of anti-trade unions acts, which included threats against the physical integrity of persons and manslaughter of trade union leaders. Taking into account this difficult and even tragic situation, as well as the absence of real improvements, the Worker members requested that this case be included in a special paragraph and that the Employer members consider such a possibility.

The Employer members stated that this case had two sides: on the one hand, the Committee of Experts had noted considerable progress in its comment under the Convention and in the General Report, and on the other hand, there remained action to be taken by the Government in order to fully comply with the Convention. With regard to the progress achieved, the statements of the Worker members were somewhat strange. The Worker members usually praised the Committee of Experts for their knowledge, wisdom and objectivity. During this discussion, the Workers had adopted a different attitude. The Employer members agreed, however, that the continuing state interference with trade union affairs was not acceptable. The Government had to take the necessary measures and the Employer members noted the Government's preparedness to undertake the necessary amendments to the legislation. They said that legislative action in relation to the right to strike was not needed from their point of view. The Government, however, had to ensure the application of the Convention in law and practice. They recalled that the signed peace agreement could not immediately bring to an end a civil war that had lasted over decades. Moreover, they believed that not every problem could be solved by the adoption of legislation. A trade union-friendly culture had to be established, which would take time. In conclusion, the Employer members disagreed with the Worker members' request to place the Conference Committee's conclusion in a special paragraph. In the light of the legislative amendments which marked a considerable progress, it went against the established tradition of this Committee to include in a special paragraph, a country which had previously been considered as a case of progress by the Committee of Experts.

The Worker members deplored that there could not be a consensus in favour of the inclusion of this case in a special paragraph of the Committee's report.

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.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

The Government has supplied the following information:

The Government has sent a copy of draft reforms to the Labour Code, to the law on trade unions, to the regulations on the right of public servants to strike, and to the Penal Code, so as to bring national legislation into conformity with the Convention and to introduce in domestic law the fundamental principles and standards of trade union law as set forth in the International Labour Conventions ratified.

These texts were forwarded by the President of the Republic to the President of the Congress on 17 May 2000 for review and approval by the Congress.

In addition, before the Conference Committee, a Government representative, Minister of Labour and Social Protection, stated that the Government had complied with its obligation to draw up draft reforms to the law to bring the labour legislation into line with Convention No. 87 and had submitted this to the legislature for its approval. The aim of the draft was to resolve the majority of the observations made by the Committee of Experts. He expressed his satisfaction in participating in the present meeting of the Committee, since he was convinced that substantive standards must have mechanisms allowing verification of compliance, particularly through the supervisory machinery of the ILO, if they were to avoid becoming meaningless statements. Last year at the 87th Session of the International Labour Conference, the previous Government of Guatemala had stated before this same Committee its commitment to a revision of its labour legislation, so as to comply with Convention No. 87. Contacts had subsequently been established with the ILO Regional Office to request technical assistance. The Committee of Experts had asked the Government to inform it in its next report on all measures adopted in this connection. This report had to be returned by the month of September of this year, which meant that the Government had complied with its obligation to submit a report four months earlier than called for. The present Government of Guatemala took office on 17 January 2000 and had fulfilled this prior obligation within only four months, to execute a state engagement, since the Government held the firm conviction that the obligations of the country must be respected and honoured. Moreover, the Government was convinced that society must live in respect of its own rules as the only means of achieving peace and progress.

Within the field of employment, the Government was firmly convinced of the need to support bilateral relations between employers and workers, in compliance with article 106 of the political Constitution of the country which protected and encouraged collective bargaining, for the purpose of which the existence of trade union organizations which could truly represent the interests and rights of the workers was unquestionably necessary. At all events, this was mandatory under the Labour Code, which established in article 211(1) that the Ministry of Labour must protect and develop trade unionism.

Since the Government's conviction was to act speedily, and because one of the fundamental pillars of the Government's programme was to combat poverty, which could be achieved, inter alia, through justly remunerated employment, he read the note dated 17 May from the President of Guatemala which had accompanied the draft reforms to the legislature. This read as follows: "It is my pleasure to submit to you the draft reforms to the Labour Code, to bring the legislation of Guatemala into compliance with Convention No. 87 ratified by our country. The State of Guatemala, as a Member of the International Labour Organization, is obliged to give effect to this Convention, incorporating into its national law the guiding principles or standards regarding the right of freedom of association and other provisions contained in the international conventions approved and ratified by Guatemala in the field of employment. The Government of the Republic, through the powers conferred on my office under article 183(g) of the political Constitution of the Republic, submits this draft law for consideration and approval by the Honourable Congress of the Republic, and considers it necessary to include within the Labour Code the provisions concerning freedom of association in such a way as to fulfil the obligation of the State of Guatemala as a Member of the International Labour Organization."

The draft reform included standards of compliance and provided for sanctions to discourage violation of the provisions of the Labour Code. A draft was also being prepared to update the Procedural Labour Code to ensure that the labour courts should be fast and efficient. These drafts would be submitted to employers' and workers' organizations at the ILO Area Office. The Government representative stated his certainty that the Committee would take note in its conclusions of the progress achieved by the Government in this area, and that these conclusions would encourage Congress to approve the draft definitively and transform it into the law of the Republic.

The Worker members thanked the Government representative for the information he had supplied and observed that Guatemala had been on the Committee's agenda for a very long time, much of it regrettably for this very case. In its comments the Committee of Experts listed various matters relating to infringement of the right to organize, which was at odds with Convention No. 87. These included the supervision of trade union activities; numerous restrictions on trade union activity based on nationality; the requirement to declare the existence of a criminal record; that the workers should be active in the enterprise; several restrictions on the right to strike, including the imposition of prison sentences of up to five years.

The Committee on the Application of Standards has examined this case since the 1980s and devoted a special paragraph to it in 1985. Since 1990 the Committee had discussed the case on six separate occasions. In 1985 a direct contacts mission took place. Numerous complaints had been put to the Committee on Freedom of Association bred by the tense social conditions and anti-trade union violence in the country. In 1997 the Worker members shared with others the hope that the peace process would usher in marked improvement in social conditions and checks on the impunity associated with breaches of freedom of association. But in 1999 it appeared that the Government was relying on procedural questions to justify its inaction.

In the absence of progress since 1991 and in view of the persistence and serious problems relating to the implementation of Convention No. 87, the Worker members again appealed to the Government to adopt as soon as possible suitable measures to ensure the application of a Convention which is fundamental both in law and in practice. They also requested that the conclusions of the Committee should appear in a special paragraph. The Worker members referred to the statement made by the Employer members last year: "On the issue of the interference of public authorities in the internal administration, programmes and the structure of trade unions ... changes without delay were required since these matters had been under discussion for a number of years." In his statement to the Conference in 1999 the Government representative had said that his Government was aware that its compliance with Convention No. 87 had been at the centre of debate for a number of years both in the Committee of Experts and the Conference Committee and that the matter could no longer be deferred.

The Worker members said that their reason for quoting from the previous year's debate was that once again they had been forced to acknowledge that though the Committee had received promises it had not seen any progress. Year after year the Government had said that it was moving in the right direction and change was on the way. But in the end the Committee of Experts passed on the same familiar comments, reporting persistent defiance of freedom of association. The Worker members concluded that in view of the persistent breach of Articles 2 and 3 of the Convention, particularly Article 3, paragraph 2, the Committee should request that national law and practice reflect draft amendments to the Labour Code, trade union law and the rules governing civil servants' right to strike as well as amendments to the Penal Code to bring national legislation into line with the Convention and to introduce the fundamental principles and standards of freedom of association into municipal law in harmony with the International Labour Conventions ratified by the country.

The Employer members noted that the case of Guatemala in respect of Convention No. 87 had been examined on several occasions in recent years. This fact was regrettable since it demonstrated that the Government was not complying with its obligations under the Convention. If one compared the comments made by the Committee of Experts this year with those of last year, there was very little information that was new.

Turning to the issues raised in the comments made by the Committee of Experts the Employer members noted that these could be divided into two parts. The first part dealt with legislative provisions of the Labour Code which allowed for the possibility of Government interference into the structure and activities of trade unions. This part was a clear violation of the Convention. The second part of the Committee of Experts' comments dealt with legislative provisions relating to labour disputes and, in particular, the right to strike. As mentioned in previous years, the Employer members recalled that Convention No. 87 did not regulate the right to strike. It was demonstrated in the preparatory notes drawn up when the Convention had been elaborated that it had not been intended to regulate the right to strike. Hence, the Employer members did not consider that Convention No. 87 had been violated with regard to the issues concerning the right to strike.

Turning to the national tripartite committee concerning international labour issues, the Employer members were of the view that its work was not very effective. There appeared to be a lack of political will by the parties represented in this national committee to collaborate. The Employer members considered that the current situation in Guatemala was also the long-term consequence of the civil war. Although a peace agreement had been concluded by the parties, the process of reconciliation was long and it was fairly difficult to reach a real and lasting peace. However, while this issue complicated matters, it was not an excuse for the Government to infringe the Convention.

The Employer members therefore considered that the Government should be urged, in the Committee's conclusions, to take measures to bring its legislation in line with the provisions of the Convention. However, the conclusions should also reflect that the Government had supplied a draft bill to the Office in May. Nevertheless, it should also be noted therein that the Committee should await the comments of the Committee of Experts on the draft legislation before coming back to this case, if necessary.

A Worker member of Guatemala stated that he had been informed by the statements of the Minister and by the written information provided by the Government of a draft law before Congress aimed at bringing legislation into conformity with Convention No. 87, made in relation to the repeated requests of the Committee of Experts. He stated that draft laws were manipulated in Congress and that there were no guarantees that the requirements of the ILO would be respected. Nevertheless, the challenge had been raised. Furthermore, he underlined the absence of political will which would ensure respect for the existence of trade unionism in practice. The speaker listed various examples of the systematic violation of the right of freedom of association. Trade union actions were penalized and criminalized with the aim to persecute, intimidate, demoralize and destroy the trade union movement and its organizations. Agricultural workers who had requested raises in wages were the object of criminal charges and were condemned to 20 days' incarceration; the trade union SITRABI and its leaders were the object of criminal proceedings, and 200 persons had raided the headquarters of the organization and made death threats against its officers. If one looked beyond the proposals of the Government, the reality was dramatic and stark. In industry, banking and agriculture, an instruction manual was in use on how to obstruct or eliminate trade unions. Dozens of trade union officials had been assassinated, and the highest judicial authorities did not prosecute the murderers, creating a situation of impunity. It was a matter of urgency to address the situation because, should workers lose confidence in the law, they would seek other means.

The Employer member of Guatemala stated that he could not refer to the draft law of which the Minister had spoken, since he had not seen it. The employers had only been shown the draft yesterday: clear evidence of its non-tripartite basis. To comply with the recommendations of the experts, one of the fundamental principles of the ILO had been violated (in complying with Convention No. 87, Convention No. 144 had been violated); under the pretext of applying the law, the law had been violated. As everyone knew, the Machiavellian saying, that the end justifies the means, was tenable neither ethically nor legally.

The recently elected authorities in Guatemala had governed for less than five months and this was the second case of violation of tripartism; which, beyond the simple ratification of Conventions, was developing into a healthy practice in Guatemala; thus, for example, important changes had been approved, such as the reforms to the Labour Code derived from the peace agreements. On the first occasion tripartism had been violated, when the Executive had submitted to the Congress of the Republic the draft concerning employment legislation which had just been adopted as a law of the Republic, the employers had been obliged to show their rejection of such a practice by leaving the tripartite discussion, since if genuinely important issues were not brought to its notice, such discussion had no meaning. This was the second occasion on which tripartism had been violated and he therefore had no choice but to address the Committee in these terms. The Minister might claim that consultation had not taken place as a result of the employers' attitude, following the first violation of tripartism referred to earlier, when the employers had quit tripartite discussion. This position was, however, untenable, since the employers had neither been convened as they should have, nor had they received a copy of the draft law, as was appropriate in application of tripartism. He questioned whether imposition without dialogue was to be the guiding principle on which labour relations and government in his country were to be based.

Perhaps the experts would not be concerned in respect of Convention No. 87, but they would certainly be so regarding the practices contrary to Convention No. 144. To solve one problem, another had been created, with serious consequences for the dialogue and concertation so necessary to Guatemalan democracy and peace, the construction of which had begun at the end of 1996. In conclusion, the Employers called on the Government to return to tripartism as the best way of guiding relations in the production sector. He requested that the conclusions of the present Committee should reflect the fact that the draft to which the Government had referred regrettably had no tripartite basis.

The Worker member of Norway, speaking on behalf of all the Workers from the Nordic group, fully supported what had been stated by the Worker members. Guatemala had ratified Convention No. 87 in 1952. In its comments on the Government's report, the Committee of Experts had once again recalled that there were a number of restrictions on the right to organize and the right to strike in the Labour Code. These restrictions reflected the completely unacceptable attitude on the part of the authorities vis-à-vis trade unions and trade union activities. By not having brought its legislation into conformity with the Convention, the Government in fact tolerated and contributed to the violations of the Convention it had ratified, but by no means implemented.

The Norwegian trade union movement was well acquainted with abuses towards workers in the country, especially in the banana sector, through direct cooperation with its sister union in Guatemala, UNSITRAGUA, and through reports from the ICFTU and Amnesty International. Workers were dismissed for no other reason than union membership and the authorities participated actively in the harassment of workers. When a subsidiary of one of the main multinationals in the banana sector dismissed 1,000 workers in September 1999, workers were gravely mistreated. Worse still, in October of the same year, paramilitaries had broken into trade union premises, held trade union leaders at gunpoint and forced them to sign resignation letters. Although the trade union premises were only 400 metres away from the police station, at no point did the police do anything to investigate these grave violations. The passiveness of the Department of Labour in the maquila industry (Export Processing Zones) was well known. While there were 11 unions in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" plants with organized workers, only to reopen them and hire more compliant workers.

The Committee had been informed that the Government might now show signs of understanding the gravity of the situation and that it would no longer tolerate the non-respect of Convention No. 87. Copies of draft amendments to the Labour Code to bring it into conformity with the Convention had in effect been forwarded to the Office very recently. However, promises to change existing laws had been given earlier -- and not kept. It would be shameful to repeat this exercise again. It was hence the responsibility of this Committee to ensure that the Government brought its law and practice into conformity with the Convention, and thus to ensure the effective protection of the workers' rights to organize, bargain collectively and take part in industrial action.

The Worker member of the United States pointed out that many of the issues raised by the Committee of Experts in its report last year were now before the Conference Committee without any final and satisfactory resolution. The Minister had made tremendous efforts to change things for the better in a short period of time, including putting forward proposals to Congress for changes to the Labour Code which would remedy some of the issues of non-compliance mentioned by the Committee of Experts, under Convention No. 87. However, the Minister was limited by other elements including the Congress, a judiciary with full jurisdiction over labour matters, employers who had adopted anti-union and anti-worker modus operandi and a lack of budgetary resources to underwrite his plans and programmes.

He wished to highlight a few of the examples of non-compliance with Convention No. 87. Referring to the points mentioned in the Committee of Experts' report, he pointed out that although the Labour Ministry had proposed amendments to remedy some of the violations contained therein, they still remained ineffective. Secondly, there was the troubling question of the Guatemalan judiciary. According to reports from representatives of the AFL-CIO Solidarity Centre, many of the eight regional tripartite conciliation and arbitration tribunals, designed to resolve disputes relating to freedom of association, were not operative. Very few cases had reportedly been resolved by these tribunals, which had originally been established to address the problem of over-centralization of the labour justice system in Guatemala City. This situation had denied workers in the countryside access to the courts. Thirdly, the reforms proposed by the Labour Ministry would not resolve violations of Convention No. 87, originating in the criminal justice system and the Penal Code. An example of such a violation could be seen in the Committee of Experts' reference to section 390(2) of the Penal Code, which could be used to impose prison sentences on those engaging in legitimate strike activities. Finally, there was also the problem of impunity for those responsible for committing criminal offences against trade unionists and their families. For example, it was his understanding that the 12 cases of assault, battery, kidnapping, murder, torture and death threats against Guatemalan trade unionists and their families, which occurred between 1994 and 1995 and which were reported to the United States trade representative in January 1996, were still unresolved without conviction or redress.

In conclusion, the ILO should do everything within its powers to ensure that the Minister's plans to bring about genuine compliance with Convention No. 87 in his country prevailed. He called on his own Government, specifically with regard to its projects to assist in the modernization of Central American labour ministries, to actively engage with the Minister and the Guatemalan labour movement, to enhance the enforcement capacity of both the Guatemalan Labour Ministry and the judiciary.

A Worker member of Colombia emphasized that the legislation of Guatemala contained unacceptable obstacles to freedom of association. He hoped that next year the promised new law regarding trade unions would appear and recalled that promises made by previous governments were never fulfilled. It was necessary to respect the rights of trade unions and to guarantee the development of freedom of association. Furthermore, the Government should guarantee that trade union activities would not be criminalized, and it should eliminate the existing situation of impunity. He recalled that a democracy without trade unions was a caricature and that unions should be strengthened in order to avoid the violent conflicts well-known around the world.

A Worker member of Uruguay indicated that it was clear from the reports of the Committee of Experts, the statements by the Worker members, and by a Worker member of Guatemala, that the situation in Guatemala was in violation of Convention No. 87. The Government's intentions in submitting a draft law to Congress were positive, but this case should continue to be monitored and examined again in 2001 if there was no progress. He hoped that the present Minister of Labour would not forget the principles for which he had fought when he was a trade union leader.

The Government representative indicated that he understood that all opinions which had been expressed were intended to be of assistance to Guatemala, but he found it regrettable that these opinions strayed from the observations of the Committee of Experts and touched on criminal acts which were not part of the discussion or on matters related to the application of Convention No. 144. He underlined the intention of the new Government to do what was necessary to move along the processing of the draft law recently submitted to Congress, which, he recalled, had only been in power for four months. With regard to the statement by the Employer member of Guatemala indicating that the Government did not respect tripartism, he recalled that it had been the employers who had abandoned tripartite consultations and had declared that they would not return. Nonetheless, he invited employers to rejoin tripartite discussions and indicated that they would be reconvened in July. With reference to other interventions, he indicated that the enterprise Bandegua and the trade union SITRABI, had arrived at an agreement to rehire 918 dismissed workers, as well as the recent decision by the court of Puerto Barrios to open oral proceedings against 23 persons for criminal acts in relation to the conflict in the banana industry.

The Worker members considered that the arguments that they had put forward one year earlier and which they had referred to were still very topical. They noted the Minister's statement about the bill submitted to Congress even though it had emerged from debate that the social partners had not been consulted. They dared to hope that the policy as announced would be translated at last into action. While waiting for promises to give way to action and for the Committee of Experts to form an opinion, they requested that the Committee should state in the firmest possible terms its concerns about anti-union practices and culture in the country.

The Employer members, referring to the statements made by a few Worker members that the Minister of Labour had been a former trade union activist and that he should therefore not forget his background in performing his work, hoped the Minister would fulfil his duties for the well-being of all people living in Guatemala. The Employer members added that the bill first needed to be examined by the Committee of Experts. In the light of that examination, this Committee could perhaps reach different conclusions. However, in the meantime the Government should provide a detailed report which should be established in consultation with the social partners in conformity with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative stated that in April 1997 the Guatemalan Ministry of Labour had submitted to the Tripartite Committee on International Labour Affairs, the observations on the discrepancies which the Committee believed to exist between national legislation and Convention No. 87. This first round of discussions did not yield a consensus on the draft reform, as the Committee of Experts had noted in this year's report. It had also taken note of the internal difficulties which had prevented the Tripartite Committee from being set up since the beginning of 1998. One month after the Government representative had taken up office as Minister for Labour, in July 1998, the Tripartite Committee was set up. One of the tasks awaiting this Committee was to approve a working agenda; the Minister of Labour considered that priority should be given to recognition of the recommendations of the Committee of Experts therein. The agenda was to be proposed by a tripartite subcommittee, formed for this purpose. This subcommittee, like others, including the subcommittee mandated to revise a draft Bill to strengthen the sanctions regime of the Labour Code, had not submitted a proposed agenda. It should also be noted that the Committee had functioned irregularly and had difficulty in achieving a quorum. For example, in 1999, only five of the 15 sessions provided for took place. The Government, in line with the provisions of the peace agreements, laid stress on tripartite dialogue, since it considered it the most suitable method of dealing with the various fields of labour relations, including issues such as an agreed alignment of the provisions of national legislation with Convention No. 87. The Government acknowledged that the issue of respect for Convention No. 87 had for several years been the subject of the attention of both the Committee of Experts and the present Committee, and that his own attention was, therefore, inevitably engaged. The Minister for Labour requested the Tripartite Committee to declare this a priority issue, so as to initiate discussion as quickly as possible, establishing a reasonable time-limit to arrive at conclusions, with the understanding that beyond this limit, should agreement not be reached, the Ministry for Labour would elaborate draft reforms to submit for the consideration of the legislature. He expressed his hope that in this the Government could count on the technical assistance of the ILO, so that the proposals of the Tripartite Committee, or in their absence those formulated by the Ministry for Labour, should receive adequate technical aid. Technical assistance would also be required in respect of the final question referred to by the Committee of Experts in its report with regard to essential services. The Government had the political will to promote and instigate action in this connection, to arrive at an agreement and a solution to the issue raised by this Committee.

The Worker members thanked the Government representative of Guatemala for the additional information that he had supplied and recalled that this case had been examined by the Committee for many years. The situation of freedom of association in Guatemala was the subject of a special paragraph in 1984, and was also examined in 1991, 1993, 1995, 1996 and 1997; in addition, a direct contacts mission filed its conclusions in February 1995. Already in 1996, the Workers' group had qualified this case as very serious because of the context of violence and repression that reigned in the country. In 1997, at the beginning of the peace process the Committee as well as the Committee of Experts, while indicating their understanding of the situation, asked the Government to take the necessary measures as soon as possible to put an end to the interference of public authorities with the activities of trade union organizations and to other restrictions on trade union freedom.

The comments of the Committee of Experts referred once again this year to violations of essential trade union rights such as: the monitoring of trade union activities, multiple restrictions on the right to organize based on nationality, existence of a police record, aptitude for or having an occupation and limitations on the right to strike with contraventions subject to the imposition of prison terms of up to five years. It was appropriate, moreover, to recall the numerous complaints that were pending before the Committee on Freedom of Association.

The report of the Committee of Experts indicated the intention of the Government to examine the question of services that were not considered essential in the context of the right to strike. However, with regard to the other points raised, the Government referred international questions to the Tripartite Committee. The development of the situation could not be considered satisfactory. Two years ago, the Workers' group had already made known its apprehension in indicating that the existence of purely formal structures was not only insufficient but could also be the basis for new delays enabling abuse and impunity for the perpetrators. It was regrettable to observe that no measure had been taken to put the Labour Code into conformity with the provisions of the Convention. The Government seemed to use the above-mentioned Tripartite Committee to justify its lack of action in so far as until now no initiative had apparently been taken to place the questions raised by the Committee of Experts on its agenda.

In addition to this lack of progress there was a difficult and violent social climate. The complaints that had recently been filed with the Freedom of Association Committee by the CGT of Guatemala, the CLAT and the CMT, on the one hand, and by the CISL, on the other hand, were evidence of a situation where labour insecurity and instability, arbitrary dismissals for trade union reasons, threats and many anti-trade union acts including kidnapping and even the assassination of trade union leaders and militants prevailed. This situation, in addition to the impunity of those responsible for such crimes, required great vigilance. It was unacceptable and frightening to note that the inertia of the authorities was paid for in human lives.

Despite the observations that had been formulated on many occasions, no progress had been noted since 1991. Faced with continuous and serious problems with the application of the Convention, the Committee's conclusions should be included in a special paragraph and the Government once again encouraged to adopt the required measures to ensure the application of the provisions of this fundamental Convention as soon as possible, both in law and in practice. The Workers' group intended to discuss this case next year and hoped to observe progress in the application of the Convention, in the absence of which the conclusions of the Committee should be renewed in another form.

The Employer members stated that in the 1980s the Committee had dealt with this case from time to time and in the 1990s again on five occasions, most recently two years ago. They noted that the case concerned many restrictions on freedom of association. While many of the problems could be linked with the long civil war, since the signing of the 1996 peace accord, the prerequisites for positive change had existed. In 1997, the Minister had announced the Government's intention to make the necessary legislative changes and in this context to set up a tripartite committee. It was now obvious that this Tripartite Committee was not active. They noted that according to the Government some of the delays resulted from the fact that the Workers' group could not agree concerning its presence on the committee and, therefore, only a few of the scheduled meetings could take place. However, this could not justify a large number of the other criticisms that had been levelled by the Committee of Experts, particularly concerning interference in the internal administration of trade unions. The State was not entitled to interfere in the internal administration of trade unions, and in this regard there had clearly been a violation of the Convention.

As regards the Committee's observations concerning the right to strike, they disagreed with the views expressed by the Committee of Experts. The Employer members were of the view that since the Convention did not provide detailed regulations in this respect, none should be inferred. The Committee of Experts' interpretations with regard to the right to strike were too far-reaching and did not derive from the provisions of the Convention. In this respect, the Employer members could not share the recommendations made by the Committee of Experts to the Government on this point. They welcomed that questions concerning industrial relations were being addressed in the context of national tripartite consultations. However, since issues of industrial disputes were an internal matter, it would be inappropriate for the Committee to comment thereon.

On the issue of the interference of the public authorities in the internal administration, programmes and the structure of trade unions, the Employer members emphasized that changes without delay were required since these matters had been under discussion for a number of years. While the delays in remedying the violations could partially be attributed to the social partners themselves, they stressed that ultimately the Government must take responsibility for ensuring compliance with the Convention. They acknowledged that there was a difference between a peace accord and true peace, and stated that it was likely that difficulties in changing law and practice had been a consequence of the long civil war. In their view, the Committee should urge the Government to take more active measures than in the past to bring about the necessary changes, and they called on the Committee to address an urgent appeal to the Government in this regard, including asking for all relevant reports. They stated that if no progress was observed, this case should be examined again by the Committee but in a different form.

The Worker member of Guatemala said that the Government of Guatemala should be obliged, once and for all, to cease confusing the national and international communities with double talk. Democracy and peace for the people could not be obtained through talk and promises and still less with signed pieces of paper. Democracy and peace was built on firm facts including, among other things, freedom of association and the respect of fundamental rights of persons, contained in the ILO's Conventions, and in this case in Convention No. 87.

He reiterated that Guatemala's legislation was not in conformity with the provisions of the Convention, despite the many observations of the Committee of Experts and the fact that this case had been discussed before this Committee for many years. The lack of political will of the Government was demonstrated by the fact that it had been necessary to resort to a direct contact mission in 1995 that dealt with the violation of trade union rights and the lack of union freedom which had been denounced by the Guatemalan trade union movement. Although the Government had always agreed to respect union freedom and bring legislation into line with the recommendations of the Committee of Experts, the situation remained the same. A United Nations report in March 1999 raised the question of non-respect of Convention No. 87 and referred to the views expressed by the Committee of Experts, citing concrete examples.

He regretted that the Government of his country tried to justify with false statements the impossibility of bringing Guatemalan legislation into harmony with the recommendations of the Committee of Experts, which they had claimed was due to a lack of consensus in the Tripartite Committee. He stated that he had been a titular member of this committee in existence since 1998 and that during this time he had seen no draft bill bringing national legislation in line with the recommendations of the experts.

Another Worker member of Guatemala stated that government supervision of union activities had enabled the General Labour Inspectorate to interfere with workers' trade union organizations. This was the case with Hidrotecnica SA where, in February 1997, the Labour Inspectorate had altered the employment registers to enable the employer to dismiss all workers who were members of the trade union. The previous Minister for Labour, in response to the union denunciations, had initiated proceedings within the Public Ministry for falsification of documents. To date, however, the case was not resolved, the workers remained dismissed and the union destroyed.

The speaker pointed out that the Penal Code regulation which enabled judgement to be passed on those persons whose intent was to paralyse or disturb the functioning of enterprises, had been used by the enemies of trade unionism to pass penal sentences on workers constituting a union, and that this had occurred in several cases in coffee and banana plantations, where approximately 200 workers were charged with criminal offences for simply being trade union members. Those who considered that trade unions were harmful to enterprises and the national economy used this regulation to destroy the unions, by converting them into criminal institutions. During the war, trade unionists had been murdered and now, during the peace process, they were imprisoned in application of dubious judicial procedures with only the appearance of legality.

The speaker said that freedom of collective bargaining and the right to strike had been removed from workers in the public sector and arbitration had been imposed on them, thus violating Conventions Nos. 87 and 98. Since the entry into force of Act 35-96 of 27 May 1996, prohibiting collective bargaining and strikes, there had been no cases of arbitration, which meant that these workers had lost all their rights. The report of the Committee of Experts showed clearly that labour legislation in Guatemala violated the principles of freedom of association, collective agreement and the right to strike contained in the Conventions ratified by Guatemala. This trade union policy resulted in those workers claiming their rights being met with acts of violence, such as had occurred in 1998 on the El Paraiso banana plantation. On two occasions, the peasants had been fired on from a helicopter inflicting bullet wounds on a worker each time, while the aggressor still went free. This year, two workers from Zacapa were murdered for trade union activity, while the author of the crime remains at liberty. There had been a recent spate of death threats against trade union leaders.

The speaker called on the international community united in the ILO and at this Conference, to obtain its support so to avoid returning to the past of the horror and death at the time of war. He urged that his country should respect the agreements undertaken and establish a true rule of law, to bring an end to the lack of punishment for the violation of workers' rights. He requested that Guatemala should be included in a special paragraph, since no positive results had emerged from the direct contact mission of 1995. Since July 1998, when the present Tripartite Committee was established, the Government had made no presentation on any issue relative to the Committee of Experts' observations.

A Worker member of Brazil stated that the Government of Guatemala's action over workers' associations was very worrying and there had been cases of persecution and murder of trade union leaders. Convention No. 87 was one of the mainstays of fundamental rights of the ILO, and the freedom inscribed in its Article 2 was quite incompatible with everything at present happening in Guatemala. Workers should be able to organize their unions free of all government supervision and in conformity with Articles 2 and 3 of the Convention, they should be free to elaborate their statutes, which was to say that they should be able to elect freely anyone who wished to join their executive committee. The same could be said of the right to strike. Striking was more than a right, it constituted an expression of freedom. In conclusion, he stated that essential services could not be understood in so wide a sense as to reduce the freedom of action of the Guatemalan unions. This was the spirit in which the decisions of the supervisory bodies of the ILO had been conceived.

The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries, fully supported the statement made by her Worker colleagues concerning the problems in the implementation by Guatemala of the Convention, which it had ratified as long ago as 1952. The Committee of Experts had recalled its previous comments on the case and listed a number of restrictions in the Guatemalan Labour Code on the right to organize and the right to strike. These restrictions on the establishment and activities of trade unions and the right to strike showed the Government's unacceptable attitude in the past to trade unions and trade union activities. However, this legal framework merely provided the background for the gross abuses of labour rights in Guatemala and legitimized the abuses committed by employers and the authorities. Minugua, the United Nations human rights organization in Guatemala, confirmed that the right to organize and freedom of association were severely limited by the authorities' failure to protect labour rights. By not bringing its legal framework into conformity with the provisions of the Convention, the Government was tolerating and contributing to the violations of the Convention. Workers were being dismissed for no other reason than trade union membership. In the few cases in which the courts demanded the reinstatement of dismissed workers, their orders were not followed. She stated that the authorities also participated in the harassment of trade union members. After a strike on a COBSA banana plantation, arrest warrants had been issued for 131 members of UNSITRAGUA. The charges had been based on lost profits during the strike, and were brought by a solidarist association in alliance with the COBSA banana plantation owners. In this way, a labour conflict had been turned into a criminal case. These charges and arrest warrants had only been revealed recently, even though the strike had taken place some time ago. In the plantations in question, 585 of 700 members of UNSITRAGUA had been dismissed, while all 355 members of the solidarist association remained employed.

She added that the passivity of the Department of Labour in the export processing industry is well known. In contrast with the 11 unions that had existed in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" establishments where they considered there to be "too many" unionized workers, only to reopen and hire more compliant workers. Women workers were particularly vulnerable to harassment by their employers.

She emphasized that union leaders continued to be killed in Guatemala. In the consequent climate of fear, workers did not dare to organize or be actively involved in the trade union movement. She, therefore, urged the Committee to take the strongest possible measures to ensure that the Government changed its legal framework to bring both its law and practice into conformity with the Convention, and thereby ensure effective protection of the rights of all workers to organize and take part in industrial action.

The Worker member of Uruguay stated that the Committee of Experts' report was more than conclusive on this case. He wondered how it was possible that, among other incredible things, of the elected trade union executives, at least three had to be able to read and write. This was an attack on basic human rights. A person who had not had access to education could not be elected to represent his colleagues in respect of social and employment questions. The speaker asked whether by any chance it was their own fault that they could neither read nor write, whether there were any education plans, and what percentage of the GNP was spent on education. To illustrate the situation in Guatemala, he mentioned the case of a lawyer who, with respect to the employment of staff in an enterprise, indicated ways to discriminate against and persecute workers who engaged in trade union activities, always to destroy unions. This was a clear example of someone who had studied and who made use of his studies in attacking the unions and, in his position as lawyer, gave advice on the violation of the fundamental ILO Conventions. The speaker wondered what action the Government would take regarding these facts. The speaker stated that he was aware that the Government of Guatemala had been elected to the Governing Body and, he wondered how it would collaborate in the administration of labour law in respect of other countries and if it would not be better for it to bring its legislation rapidly into line with Convention No. 87, so as to be able to ensure the most fundamental of human rights in other countries.

The Worker member of the United States expressed regret that while the Committee had reviewed this case thoroughly on a number of occasions, most, if not all of the violations raised had not yet been remedied. He asserted that there could be violations of the Convention through acts of omission as well as of commission. It was, therefore, not only legal limitations on freedom of association that contravened the Convention, but also a government's failure to prevent effectively and remedy the interference of other parties in the workers' exercise of associational rights, such as in non-violent strikes and concerning organizing and collective bargaining.

He referred to the 1999 ICFTU report on Guatemala stating "every method in the book is used to destroy trade unions". He also made reference to the workers' rights and freedom of association review process of the General System of Preferences in US trade law. In May 1997, the US trade representative having completed a review on Guatemala, stated that the country needed to make substantial advances and changes, and reserved the right to reinitiate the review if necessary. However, the Government had failed to make those substantial advances and changes. He stated that the country's restrictions on the right to strike clearly contravened the Convention. In this context he pointed to sections 243 and 249 of the Labour Code and section 390(2) of the Penal Code which in his view prohibited any effective strike action in both the rural and the urban sector. He asserted that the statements made during the Committee only confirmed that the necessary legislative measures to redress these fundamental violations of the Convention had not yet been implemented. He expressed regret that the Tripartite Committee which was supposed to formulate these legislative measures seemed to have been at a standstill since July 1998.

He emphasized that a State's administrative and judicial capacity to protect and advance freedom of association was a key to its compliance with the Convention, and that, in May 1998, a Labour Code reform package had been passed ostensibly for this purpose. However, this reform totally failed to improve the enforcement capacity since it imposed no fines for violations and did not provide authority to the Labour Ministry to impose sanctions without having to await court action. Moreover, the Labour Code reform failed to ensure the implementation of article 380, providing that workers who had been unlawfully dismissed or victimized would be reinstated within 24 hours; many dismissed trade unionists had been waiting for years for redress. He joined a number of the other speakers in urging the Committee, given the lack of any progress even in the wake of direct contacts missions, to include this case in a special paragraph.

The Government member of Colombia stated that it would be dishonest to fail to recognize the profound harm that was caused by non-stop violation of Convention No. 87 by the Government and many employers. A quick glance at the report of the Committee of Experts sufficed to show the unacceptable manner in which the rights of workers were being denied and distorted and this with the greatest impunity. The political Constitution and the Labour Code set forth the rights and guarantees of workers but were in fact nothing more than a dead letter. The speaker cited various cases where workers had been dismissed and persecuted. He also mentioned cases where trade unionists had received death threats. He expressed the hope that the Government would take the measures to protect the lives of trade unionists and would give guarantees regarding freedom of association, collective bargaining and the right to strike. What was the point of signing for peace, if war continued?

The Worker member of Spain stated that, although the report of the Committee of Experts only dedicated a page to Guatemala regarding Convention No. 87, systematic attacks on freedom of association were regular in that country. In March 1994, a United Nations fact-finding mission to Guatemala had produced a new report giving details of attacks against unions. The report denounced continuous connivance between judges and the Government to persecute trade unionists. There were innumerable examples of such action. He cited a case in which the judges had accused several trade unionists of the crime of abortion in a United Nations report. A precautionary injunction had been at the origins of the procedure. Although the persons concerned had then been released, such action weakened the trade union structure. Indeed, a plan to destroy the trade union movement had been revealed in a Guatemalan newspaper. He also referred to the case of an enterprise which had dismissed its workers and, four or five months later, replaced them by workers who had no history of trade union involvement.

The Worker member of Bolivia indicated that it was unacceptable, from any point of view, to prohibit the right to strike and to impose one- to five-year prison terms in this regard. The spokesperson asked how trade union rights could be ignored when the workers themselves were the ones supporting democracies. He recalled that Convention No. 87 had entered into force on 4 July 1950 and that the Government of Guatemala had ratified it on 13 February 1952, but since then there had been no new developments. He called for full compliance with Convention No. 87.

A Government representative of Uruguay regretted Guatemala's position with respect to Convention No. 87 and hoped that the efforts referred to by the Government of that country would soon be made, so as to bring its legislation and practice in line with the letter and the spirit of the Convention. He stated that Uruguay had recently received a Tripartite Committee from the Ministry of Labour of Guatemala, which came to analyse the different aspects of the development of tripartism in Uruguay. The members of the Tripartite Committee had taken great interest in all the activities which had been proposed to them. This recent visit had given him confidence that the Government would expedite and promote the inevitable amendments to its legislation and its practice, in respect of Convention No. 87, so that the peace and democratization process might be clearly felt in the field of labour relations. The election of Guatemala to the Governing Body of the ILO only served to make this responsibility more clear.

The Employer member of Guatemala regretted that it had not been possible to discuss the issue in question in the tripartite committee, as indeed the experts had said in their report. This was due, among other reasons, to the fact that the trade unionists had been unable to agree on who should represent them. This was regrettable since the Employers shared the concern of the Workers regarding violation of Convention No. 87. He also stated that there had been 116 illegal work stoppages, and occupation of plantations and factories. For this reason, the Employers could not accept a special paragraph.

A Government representative stated that as regards the conflict which had ravaged his country for the past 36 years, the peace agreements were not agreements on paper only, but official declarations by his Government before the national and international communities and marked the beginning of a process which could be further improved. The root of the civil war lay not only in poverty and the lack of democracy, but also in the Cold War and in ideologies oriented towards substituting democracy with a dictatorship sustained by the class struggle.

The Tripartite Committee on International Affairs provided a forum in which solutions regarding labour relations could be sought and did not constitute a pretext for avoiding international obligations. However, the workers had not availed themselves of the opportunity to progress from denunciation to dialogue and had not put forward concrete proposals. He pointed out that although the Ministry of Labour had proposed amending the sanctions regime of the Labour Code, in the ensuing twelve month period, neither the workers nor the employers had replied to these proposals. He indicated that of the ten sessions suspended, eight were attributable to the workers' failure to attend Committee meetings, one to the employers, and one to the Government.

As regards the murders referred to, he considered that these kind of references were highly irresponsible. For example, in the case of the murdered trade union leaders in Zacapa, the investigations of the MINUGUA revealed that these trade union leaders and others who had been killed had been murdered for denouncing acts of corruption by municipal officials in Zacapa. Certain workers had made a number of erroneous statements claiming that judges, who were members of a body independent of the Executive, were colluding with the Governor.

As regards the death threats issued against the Secretary General of the CGTG, Mr. Jose Pinzon, these were denounced before the Tripartite Committee, whoc condemned these threats. The Ministry of Labour had requested an investigation into these threats by the appropriate authorities and had followed the case closely. When Mr. Pinzon was asked to provide a copy of the death threat which had been faxed to him, he replied that he had destroyed the fax.

In conclusion, he reiterated his Government's firm commitment to continue to work with the Tripartite Committee in the hope of reaching agreement on the Bill which would take account of the comments that had been formulated in this regard.

The Worker members stated in respect of the statement of the representative of the Government, the Employer representatives and the Employer representative of Guatemala, that other reasons for the non-functioning of the Tripartite Committee on International Labour Questions had been mentioned.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

A Government representative, Minister of Labour and Social Protection, recalled that on 29 December 1996 the Accords on a Firm and Lasting Peace had been signed by the President of the Republic and the National United Guatemalan Revolutionary Front (URNG). The Peace Accords, which were brought about under the auspices of the United Nations and the ILO, permitted an improvement in relations between workers and employers. The dialogue which had developed had helped to resolve differences, and was at the heart of the creation of the tripartite Committee of International Labour Relations which operated in the country. The speaker was grateful for the role that the United Nations and the ILO had played in negotiating the Peace Accords. The commitments contained within the framework of the Accords allowed the Ministry of Labour to modernize, strengthen, and decentralize the General Inspectorate of Labour and Social Protection Directorate, particularly in the areas of health and social security in work, and of labour relations. These commitments included the translation of the labour laws into the Mayan languages, amendment of the labour legislation, training of 200,000 workers, and the use of dialogue to resolve conflicts between workers and employers. The tripartite committee raised awareness, resolved many conflicts, and promoted bipartism. Within the framework of this Committee, draft legislation was being examined which would be sent at the appropriate time to the Congress for consideration. The workers and employers played an outstanding role in consolidating tripartism, brought about with the assistance and collaboration of the ILO's multidisciplinary team based in Costa Rica. The Government proposed to the Committee of Experts that it elaborate and adopt draft legislation, which had been submitted for approval to the tripartite committee, to harmonize the national legislation with the Conventions. In order to reform sections 211, 220, 223 and 243 of the Labour Code, in accordance with the recommendations of the Committee of Experts, draft legislation would be submitted for adoption at the next meeting on 26 June 1997. The Peace Commission and the ILO Standards Department had been informed of these developments. The speaker expressed his appreciation for the technical assistance of the ILO multidisciplinary team's specialists and the support of the Director of the ILO Area Office, and foresaw that such assistance would continue in the construction of a new Guatemala.

The Employers' members noted that this was a long-standing case which was being discussed for the 12th time since 1980 and had been the subject of three special paragraphs. In the late 1980s, the Committee of Experts had noted it once as a case of progress and a direct contacts mission had taken place in 1995. The protracted civil war had played a role, and they were pleased to note that the Peace Accords had created the possibility for constructive dialogue. They highlighted their concern over the restrictions placed on union activities: nationality requirements, the exclusion of candidates with criminal records, and the requirement that candidates be active in the enterprise at the time of the union election. The Employers' members noted that, according to the Minister of Labour, the Government would be ready to submit draft legislation at the end of June 1997. However, they could not share the views of the Committee of Experts concerning the right to strike, as they considered that this right did not flow from Convention No. 87. They noted the agreements reached by the tripartite committee, and expressed the hope that they would yield positive results. Lastly, the Employers' members asked the Government to send a detailed report to the Committee of Experts and hoped that they would be able to note full compliance with the Convention.

The Workers' members recalled that the case had been categorized as a very serious one during the discussion held in the Committee last year. It was very serious because of the facts described by the Committee of Experts, which pointed to a profound divergence between the legislation and the Convention. It was very serious also because of the total absence of cooperation on the part of the Government which boasted of having ratified a large number of Conventions. Finally, its seriousness was proved by the violence and generalized repression revealed by the numerous complaints before the Committee on Freedom of Association. The recent Peace Accords might open the way to reconciliation in the country and permit progress in the application of the Convention, in law and in practice. However, the situation was still at the stage of promises, while its gravity required urgent and significant action. While the Government could be commended on its willingness to adopt a new labour code, as it had announced before this Committee last year, no satisfaction could be drawn from the unsubstantiated reforms. In this respect, it was important to have information on the precise work of the numerous tripartite committees which had been mentioned and, in particular, on that of the tripartite committee on international labour questions, because the existence of purely formal structures was not only insufficient, but could lead to delays perpetuating abuses and impunity. Therefore, the Workers' members could not but share the strong hope expressed by the Committee of Experts that this tripartite committee would take into consideration, in the near future, all of the comments formulated with the view to the elaboration of the draft Code. This was particularly necessary in view of the very fragile political and social context characterized by the general climate of violence and deep anti-union attitudes. The numerous complaints concerning violations of freedom of association attested to the difficulties confronting workers in the exercise of their trade union rights: they were very often threatened, dismissed, attacked or even assassinated, while the anti-trade union practices of the national and foreign enterprises very often went unpunished. The involvement of the police authorities in these practices remained very worrying. It was therefore necessary to be extremely vigilant to ensure that the hope which had arisen from the Peace Accords would not be dashed by paper reforms which veiled violent anti-union practices. The Government should proceed rapidly, with the help of the Office, if necessary, to implement the proposed reforms and should provide a detailed report containing full information on the measures taken to bring the legislation and practice into conformity with the requirements of the Convention.

The Workers' member of Guatemala stated that the Government and employers violated national and international labour standards. The Peace Accords had masked the serious crisis which existed in his country and the loss of moral values. The Government's report contained unilateral information, since the workers' and employers' organizations had not been consulted. The Government had not made any effort to comply with the Committee's requests. An ILO direct contacts mission would confirm his assertions. The tripartite committee, mentioned by the Minister of Labour and of which the speaker was a member, did not promote dialogue and the search for consensus on trade union rights. In Guatemala, the freedom to organize and bargain collectively were restricted, as was evidenced by the destruction of several workers' organizations. Certain enterprises had filed court actions against unions and certain judges had fined the unions considerable amounts. The Government continued to issue standards contrary to freedom of association.

The Workers' member of Argentina recalled that the Workers' members had made specific criticisms on the discrepancies between the position described by the Government and the daily reality concerning trade union rights. Even though one should not forget the context of internal conflict in Guatemala, efforts should be made to secure the effective exercise of freedom of association. The Government should not create situations of anti-union violence, limit the right to strike or discriminate against agricultural workers in the exercise of their rights. Many Latin American countries had ratified ILO Conventions but their legislation did not recognize the rights those instruments established. The full exercise of democratic trade union activity could take place only in a country which favoured the protection of personal and union freedom in daily practice.

The Workers' member of Costa Rica recalled the statement made by the Government representative during last year's Committee which indicated that new legislation had been tabled before Congress and that a decision was awaited. In the present session, the Minister of Labour had indicated that draft legislation was before a tripartite committee. It was apparent that there was no political will to resolve the questions raised by the Committee of Experts. The conciliation tribunals created in Guatemala impeded collective bargaining, and the observation of the Committee of Experts had referred to government interference with unions. Union leaders should benefit from the rights established by the ILO core Conventions and should not be viewed as obstacles to consolidating social peace.

The Workers' member of Greece thanked the Minister of Labour for having taken part in the Committee's dialogue. He was particularly pleased that the Workers' member of Guatemala had spoken because the present Committee frequently discussed violations of freedom of association in the absence of the true representatives of the workers of the country in question. It was now indispensable that the Government repeal sections 220 and 223(b) of the Labour Code which legitimized discrimination of foreign workers, as well as section 241(c): workers knew very well that the success of a strike implied that it was supported by more than a simple majority of the workers involved. The judicial and other formalities to which workers were subjected in the election of their trade union leaders should also be removed, as well as other provisions mentioned by the Committee of Experts, such as section 255 which authorized the possibility of calling upon the national police to ensure the continuation of work, or the series of sections defining legal or illegal strikes. It was also necessary to repeal section 257 and section 390 of the Penal Code which threatened the workers engaged in a legal protest action with very severe penalties.

The Employers' member of Guatemala declared that progress had undoubtedly been achieved in the labour field in Guatemala, as illustrated by this year's revised list concerning the Generalized System of Preferences. Furthermore, the functioning of the Bipartite and Tripartite Committees was very satisfactory. The Government had shown tolerance towards strikes and peaceful takeovers of workplaces, and had even on occasions set aside the claims of employers. The Government's policy had made it possible to establish a large number of trade unions, including independent trade unions at the village level. Contrary to the claims made in certain statements, the trade unions of flour mill workers and bank employees referred to in the discussion were still active. In the case of the former, the dismissals had been a result of the acquisition by the enterprise of automated machines aimed at enhancing competitiveness and in the other case, the Los Cerros matter, a trade unionist had illegally confined the administrative personnel.

The Workers' member of Colombia expressed satisfaction at the signature of the peace accords. However, he emphasized that 45 years after the ratification of the Convention, the Government and the legislation continued to violate such basic rights as the right to organize, the right to collective bargaining and the right to strike. A direct contacts mission should be sent to Colombia as long as the Government had not shown a genuine commitment to apply the Convention.

The Workers' member of France understood from the statement of the Minister of Labour that the serious problems previously noted in Guatemala were to a large extent caused by the climate of tension. In view of the present situation, substantive changes, including a complete review of the legislation, could be hoped for in the near future. However, he emphasized that, while such reforms would take some time, certain immediate measures should be undertaken in order to ensure the full development of the trade union movement in a climate that was free of violence. Recalling that the case of Guatemala had been examined last year by the present Committee and that few changes had been observed, he insisted that it be subjected to continued examination in order to monitor whether any substantive progress had been made.

The Minister of Labour reaffirmed his earlier statement that the Tripartite Committee had reached agreement on 90 per cent of the points criticized by the Committee of Experts and the remaining issues would be discussed again on 26 June. A draft Bill would then be submitted to Congress. The Government wanted the reform of the labour law to be endorsed by workers and employers. The Bipartite Committee, in which the Government did not participate, was examining the reforms to the procedural part of the Labour Code, and was benefiting from ILO assistance. The revised list for the Generalized System of Preferences illustrated the improvement and progress in the situation in Guatemala, as recognized by the Government of the United States. The United Nations had recognized that the human rights situation had improved and that there was now no state terrorism. According to the reports of the Committee on Freedom of Association, denunciations of acts of violence against trade unionists had decreased in number. Violent acts were no longer perpetrated against trade unionists. If it were appropriate, the Minister of Labour would be ready to accept an ILO mission concerning the application of the Convention.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative recalled that Guatemala was one of the most long-standing Members of the ILO. It was also one of the countries which had ratified the greatest number of ILO Conventions which, while not necessarily signifying that it had always met its obligations, nevertheless proved the country's interest in participating in international agreements. For the first time in many years the national delegation was made up of people who were most representative on a tripartite basis and of the highest possible level.

For the last 35 years Guatemala had suffered from one of the most appalling armed conflicts which Latin America had seen in recent history, and it had seriously disrupted the operation of the country's institutions. Since 1985 the Guatemalans, with the assistance of the group of friends made up of Spain, Norway, Colombia, Mexico, Venezuela and the United States with direct participation by various institutions from the international community, including the ILO, had embarked upon a long and difficult process of rebuilding institutions and re-establishing peaceful relations between all sectors of society, including workers and employers. The country hoped to be able to bring an end to the armed conflict in the next three months on the basis of the signing of a final peace agreement.

A very painful consequence of the armed conflict had been the extensive spread of violent human rights violations, which had particularly affected workers because of their vulnerable political and social position. However, the situation had started to improve in terms of greater, more serious and reciprocal recognition between the social partners, their greater participation in decision-making at national and sectoral levels and, in general, greater respect for their rights of freedom of association, participation in the life of society, greater security and respect for them as individuals and as leaders of social organizations. In this process, the current Government, which only came to power on 15 January of this year, would like to reiterate its commitment to fully respect the principles of peaceful and democratic coexistence and of full respect for human rights, especially freedom of association.

First of all, the Government of Guatemala had decided to honour all its international commitments stemming from its ILO membership. Secondly, it intended to really and effectively eliminate from national life all factors which had implied or continued to imply restriction on the free action of citizens or which would perpetuate impunity in any shape, size or form, including with relation to labour matters. In this connection, the Government had agreed upon and was implementing unprecedented action directed at ensuring the total and irrevocable control by civilian authority over state institutions, including especially the security organs, at modernizing the legal system, including the adoption of a new Criminal Procedures Code, at strengthening of institutions which complemented an effective, swift and non-discriminatory justice system, including the adoption of new procedures for conflict resolution, in labour matters as well.

The speaker admitted that in the past the Government of Guatemala had failed to comply fully and in due time with its constitutional obligations vis-à-vis the ILO, including reporting obligations. Now, however, the Government was doing its utmost to change this conduct so that in the future it would be able to fully comply with this elementary but fundamental responsibility. Just six weeks ago, the Government and the representatives of the rebels, meeting in Mexico City, signed a document which contained the following points related to labour issues: observance of and strict compliance with labour law, including international Conventions; training of Guatemalan workers; dialogue and consultation between both sides of industry; joint training courses; and joint action on conflict prevention and resolution. Yesterday, the Government announced at this Conference that it had ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which could not even be dreamed of in the past.

In the course of this week, the Government would be providing written information on the cases indicated in the report of the Committee of Experts about violations of fundamental rights and difficulties facing people when they tried to establish a trade union organization. This document would be updated on the basis of reports provided by governmental institutions which were not dependent on the Ministry of Labour and Social Welfare. Furthermore, the Government of Guatemala agreed with the criterion of the Committee that: "The rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members and that it is for governments to ensure that this principle is respected." The Government would give detailed consideration to the comments made by the Committee on Freedom of Association and the direct contacts mission on the need to revise and adjust the provisions of the Labour Code. However, the Government on its own, and indeed together with workers' and employers' organizations, had assessed that, because of the political interests at stake in the national legislative body, it was reasonable to assume that such reforms might not be approved at the present moment as it would have wished. Therefore, in the tripartite committee, which was already operating very successfully in Guatemala, there was a preliminary consensus to the effect that any reform that might be suggested should be the result of an agreement taken on a tripartite basis between workers, employers and the Government. This subject had already been included on the future agenda of the tripartite committee.

The speaker further informed the Committee that the Ministry of Labour and Social Welfare, just five months after the new Government had taken power and on the basis of certain recommendations made by the direct contacts mission, the Committee of Experts and the Committee on Freedom of Association, had, inter alia, undertaken the following action:

- it had convened, organized and begun to run the Tripartite Committee on International Labour Matters and the tripartite training committee;

- secondly, Bills had been submitted to eliminate from the national legislation certain provisions of a discriminatory nature for political reasons (the Law defending democratic institutions), to eliminate provisions on forced labour through modifications to the Criminal Code, and to modify the Civil Code so as to remove certain discriminatory provisions for reasons of sex. The Government will keep the ILO informed and supply the relevant drafts;

- thirdly, on the basis of the above-mentioned agreement the Government will speed up the recognition of legal personality, the approval of the statutes and registration of trade union organizations;

- fourthly, a new agreement was drawn up on the basis of criteria set up by the Ministers of the Economy, of Public Finance and of Labour, through which drastic sanctions will be applied, including the cancellation of licences for individual or collective enterprise owners and directors who run maquilla enterprises where labour standards were violated. Additional measures were taken to strengthen the operative capacity of the General Labour Inspection Office.

With UNDP's support, the Government was going to implement a programme, the final result of which would be to prepare a proposal for arbitration proceedings relating to labour matters in order to solve conflicts at an early stage.

Finally, the speaker promised to transmit to the secretariat of this Committee photocopies of the following documents: a list of 123 trade unions registered between 1 January 1995 and 10 June 1996, a letter from the Central American Executive Secretariat of the CLAT which recognized the progress which had been made with respect to the registration of trade unions, and the Ministerial Agreement concerning the establishment of the Tripartite Committee on International Labour Matters.

The Workers' members stated that there were at least four reasons for which the case of Guatemala was very serious. First, whereas, last year, the Committee requested a detailed report, the Government did not respect its constitutional obligations concerning sending reports and replying to the observations of the supervisory bodies. Once again, the Government had promised that in the future it would take necessary measures so that reports would be sent on time. The Committee of Experts also "regretted to note that the Government has not replied to its comments". The explanations of the Government representative hardly differed from those a year ago: negotiations or tripartite contacts were mentioned, but there was truly an impression that no progress had been accomplished. To convince the Committee otherwise, the Government would have to send a very detailed report for examination by the Committee of Experts.

Second, this was the sixth time in 11 years that this case had been examined. During the previous meeting, an in-depth discussion took place during which the Workers' and Employers' members had very firm positions, and very precise conclusions were adopted. As early as 1985, this case was the subject of a special paragraph in the Committee's report.

Third, significant discrepancies remained between the legislation and the Convention, for example, the strict control of union activities by the Government. The Committee of Experts and the present Committee had insisted on the necessity to make the legislation more flexible in order to simplify setting up and operating unions. To set up and operate a union in Guatemala, one must be both an expert in administrative law and a very brave man or woman. The right to strike was recognized in principle, but the modalities and conditions were such that, in practice, even the principle of the right to strike did not exist and trade unions were not free to set up and implement their programmes. The replies of the Government to the comments and observations of the Committee concerning the legislation remained very vague. Initially, the Government stated that only Parliament was competent to change the legislation; however, in each country, the government proposed legislation and it was up to Parliament to adopt it. Then the Government mentioned that there was in fact greater flexibility in the application of the legislation in question, for example, as regards setting up trade unions. According to the available information and the complaints before the Committee on Freedom of Association, problems on this point remained in practice. Finally, the Government indicated that it was pursuing a dialogue with workers' and employers' organizations to perhaps modify the Labour Code, but the amendments introduced by Decree 64/92 in December 1992 were minimal. The Government admitted this during the previous session of the Committee. Moreover, there was a direct contacts mission in February 1995. On this point, it could be said that the Government was insufficiently committed to bringing the legislation into conformity with the Convention.

Fourth, there was a general climate of violence and a deeply anti-union attitude. The multiple complaints before the Committee on Freedom of Association clearly illustrated the difficulties confronting workers who wanted to put freedom of association into practice. They were too often dismissed, threatened, brutalized, and even murdered. The anti-union practices of paramilitary groups, police forces, and, unfortunately, a large number of national or foreign companies too often remained unpunished. Many employers had created or supported solidarist organizations to avoid constituting or to discredit a workers' union. At the previous session, the Workers' members pointed out that there were at least 400 enterprises with 100,000 members of solidarist organizations.

The Workers' members insisted that the Committee adopt very firm conclusions. In their opinion, the Government had too often promised improvement, and they requested that the conclusions of the Committee be placed in a special paragraph of its report. If this was not possible, they immediately requested that the firmest conclusions possible be adopted to insist on the necessity for genuine change. If the same promises were made without effective change, the Workers' members announced that next year they would request that the conclusions be contained in a special paragraph.

The Workers' members likewise requested that the conclusions contain very clear indications to the Government and those in charge of labour relations and human rights in Guatemala on the four points developed above: the Government must reply to observations of the Committee of Experts and to comments of the present Committee; it must send the reports due (the Workers' members consider unacceptable the Ministry of Labour's argument that it lacked the necessary resources); it must substantially reinforce the efficacy of the system for setting up a union, and repeal both administrative and practical constraints in order to promote freedom of association; it must ensure the freedom of action of unions and protect the physical and moral integrity of union leaders and their families; it must likewise insist that the efficiency of labour tribunals, the legal system and the inspection service, as well as the general rule of law, be significantly strengthened.

Lastly, it was necessary to encourage a stable and effective system of collective labour regulations.

The Employers' members, recalling the long history of this case before the Committee, stated that it should be looked into from the legislative situation, on the one hand, and the practical side, on the other. With respect to the legal situation, it was very clear that there were many divergencies between the currently applicable legislation in Guatemala and the requirements of the Convention, and this had been the case for many years. There were far too many obstacles which impeded workers from exercising the freedom to which they should be entitled under the Convention. While prohibition on strikes by agricultural workers at harvest time, for a country like Guatemala, could be said to apply to an essential service, even in the narrow interpretation of the Committee of Experts, the legislation governing the right to strike was perhaps too general and left too much room for arbitrary action on behalf of authorities. The Government representative had also made a general statement to the effect that in future the Government would honour all its obligations. He kept referring to the fact that major change was going to take place in the near future, but gave no details about the context of such proposed change. Therefore, once copies of the drafts to which he referred were available, they would have to be studied carefully by the Experts.

As regards the practical context of this case, over the past few decades there had been a situation similar to a civil war in Guatemala. The Government representative said that he had high hopes that it would now be possible to work seriously on reconstruction in the country, to reduce the atmosphere of violence, and to continue to work in an atmosphere of peaceful development. As stated in the report of the Committee of Experts, a special direct contacts mission went to Guatemala, there was a procedure before the Committee on Freedom of Association, and the Government and other authorities engaged in good cooperation with representatives of the ILO and provided a great deal of information. The Employers' members thought that it was high time these contacts had practical consequences and produced some tangible results. One positive sign in this respect that gave cause to hope that things might improve in the future in a more peaceful context was that a meeting of the tripartite committee which the Government had promised to set up last year, had finally taken place. The Employers' members believed that this Committee must once again ask for tangible practical change and request the Government to take measures which would bring about visible change in the situation. The Government must also be urged to file the outstanding reports as quickly as possible so that the Committee of Experts and this Committee could ascertain whether any positive progress had been made.

The Workers' member of Guatemala fully supported the statement made by the spokesman of the Workers' group. As a member of the Tripartite Committee on International Labour Affairs, he could observe that in practice this Committee had been talking at cross purposes. At the workers' request, it did make a start on setting up bipartite and tripartite groups to look at the various aspects of different labour conflicts, but, in fact, very little had changed in the situation in Guatemala.

On 5 June the Office had received a complaint concerning the violation of the workers' right to strike. By ordering the armed forces to go into the Congress in, what he called, an attempt to protect the MPs, the President had tried to coerce the members of Parliament to approve a law restricting the right to strike of the workers. The President of the Congress, after an intensive discussion with the plenary of the Parliament, requested the armed forces to pull out of the Parliament. However, this law was approved in record time. It was approved on 23 May, it was published on Monday, 27 May, and it came into force on 28 May. As the Central American Gazette where the laws were published did not circulate on 27 May, workers were not even able to be aware of the publication of the law in time to do anything about it. As to what was actually done in practice in Guatemala, the labour courts had literally thousands of labour conflicts files lying on their desks and so far just two had been resolved.

Another Workers' member of Guatemala stated that the trade union movement in Guatemala had indeed given this current Government the benefit of the doubt when it came to power. However, the results had been negative: the right to strike had been restricted and norms which had already been established, including those relating to collective bargaining, had been damaged and swept aside as well. What was happening in Guatemala was that there was absolutely no political will to accept, tolerate and work with the trade union movement. The anti-trade union interests in Guatemala were as strong now as they had ever been and they made it impossible to take any political decisions to improve the situation.

The other problem that had been referred to here was that of impunity. Justice was not applied in Guatemala. There was a deep-rooted culture of intolerance of the trade union movement, both in daily life and in daily practice. The most seriously affected sectors of Guatemalan society concerned rural workers and people who worked in the maquilladora industries and in the textile industry.

The restriction on the right to strike had affected also the national police employees. The national police was a civilian force, not a military force, but as a result of the new law the national police had been categorically stripped of the right to organize, in violation of the Guatemalan Constitution, including article 34 concerning freedom of association. This law made workers in the state sector unable to undertake any action to prevent structural adjustment measures, such as privatization and sell-offs, being implemented. The speaker concluded by stressing that the promises made by the Guatemalan Minister of Labour in this Committee were no doubt important and that some administrative progress had been made. However, the real problems facing the workers were not of an administrative or legal nature; they were problems stemming from a lack of political will to give the trade union movement a place in Guatemalan society and the possibility to function and operate freely.

The Workers' member of the United States strongly associated himself with the previous statements made by members of the Workers' group and emphasized that this was a long-standing serious case matching the worst in terms of violence this Committee had ever seen. Although the Government of Guatemala had made several improvements in the union registration process, it had gone backwards in several other ways. The National Assembly just passed a reform of the public service law by Decree 36/96 which prohibited the right to strike in a number of sectors not considered essential services by the ILO. This included the public transportation sector, the postal and telegraph service, the production, transportation and distribution of petroleum and oil products. With regard to other services considered as essential by the ILO, no provision was made for limited strikes in which workers were required to keep minimal levels of service functioning so as to ensure the health and safety of the population. Furthermore, the new law prohibited public employees from using court injunctions to protect workers from being fired after they had presented management with a list of demands for collective bargaining, which was the only small protection that workers in Guatemala had for management reprisals against legitimate organizing activities. In the private sector, employers routinely fired workers who attempted to form unions. Despite a law prohibiting such reprisals and calling for the reinstatement of illegally fired workers within 24 hours, it was seldom, if ever, carried out. Instead workers had to wait many months or even years of court appeals before any action was taken to reinstate them in their jobs.

Last year the Government decided to hear all complaints of a collective nature, including all the freedom of association and collective bargaining cases, in the Sixth and Seventh Labour Courts located in Guatemala City. Not only did this decision impose an impossible burden on workers in the countryside who must travel a long distance to bring a case, it also had resulted in a huge backlog of cases. Also, there were still far too many cases in which violence against workers was carried out with impunity, and the authorities failed to pursue full investigations resulting in the arrests and trials of the perpetrators.

Finally, the speaker mentioned one potentially positive step recently introduced by the Guatemalan Government to enforce its labour laws: the temporary suspension of export licences and linking the special privileges received by investors in the export sector, such as tax breaks and expedited customs procedures, with respect for workers' rights. Unfortunately, the only time the new remedy had been applied was against a company which had already decided to close down anyway. The speaker looked forward to the application of this new remedy in the future against other companies that flagrantly disregarded the labour laws of Guatemala.

The Workers' member of Costa Rica recalled that since 1986, this was the fifth time that Guatemala had been called to this Committee and, therefore, there had been more than ten years available to deal with the legal abuses which existed in Guatemala. However, those who had economic and political power were acting in a way that proved that Convention No. 87 and other basic rights were a dead letter in Guatemala and were going to continue to be a dead letter in Guatemala. He considered that once and for all the conclusions of this Committee in relation to this case should be emphatic and unequivocal.

The Workers' member of Panama pointed out that this was one of the most serious cases which had been raised in the Committee, particularly because of the issue of impunity and the lack of success of investigations into threats against and murders of trade unionists and people from the neediest sections of Guatemalan society. This situation had been exacerbated by the recent approval of the law prohibiting the right to strike for state employed workers, as in many other countries of Latin America. The police was given, by law, the right to ensure that work continued in the event of a strike, and three to five years of imprisonment awaited any union activists who called a strike. It was absolutely shameful that there were still countries like Guatemala where the Government had to use the law to deal with situations of this kind. Therefore he urged that a special paragraph be adopted for the Guatemalan case.

The Workers' member of Denmark stated that, while a lot was said about legislation, it was not enough to secure rights for workers. The Committee needed to know more in detail, more specifically what had been done since the last Conference in order to protect the security of workers and workers' representatives, and what were the future measures, in practice, in order to help the workers and their unions in this particular country. Concrete information was necessary instead of the statements and promises that the Government had been making all these years, and in the absence of such, the outcome might well be a special paragraph next year.

The Employers' member of Guatemala referred to the report of the direct contacts mission carried out by the ILO to Guatemala, which emphasized the very complex situation in Guatemala, a country that stood between war and an attempt at peace. The employers of Guatemala, like the workers of Guatemala, had been suffering from the consequences of the war, and the speaker gave a number of examples. The employers of Guatemala were also in a very difficult position because of the burden imposed by rebels of the armed faction fighting in Guatemala. They were also the victims of frequent kidnappings. Apparently this was no longer happening, but, while it did, millions of dollars were extracted from businessmen in Guatemala through blackmail. This meant that employers were, in many cases, simply not able to run enterprises with a free hand and in a way that would have been of benefit to all.

As regards freedom of association and trade union rights, substantial reforms were carried out to the Labour Code in 1992, which led to a reduction of the time required for the registration of trade unions, eliminated a lot of the formalities and red tape, gave protection to people involved in labour conflicts, etc. However, the courts and labour tribunals in Guatemala worked very inefficiently not only in labour conflicts but also in commercial disputes, in civil cases and in criminal cases as well. The courts themselves went on strike relatively recently for one month. During that month, thousands of Guatemalans had to remain in prison because their release orders were not signed. A strike on the part of the judicial system added to the internal conflict, and one could well imagine the situation in the country and the consequences.

The speaker requested the International Labour Organization to give more cooperation and assistance so that the country could continue to make progress as concerned the application of all the international Conventions to which Guatemala had become a party. This was really not the time for condemnation of the country, which was just emerging from a war and needed support and assistance to take the peace process to a successful conclusion.

The Workers' member of Spain welcomed the negotiations which were currently in hand to achieve peace in Guatemala. However, with respect to the trade unions' situation in Guatemala, very little had changed. Either there was a fear of trade union freedom and the right to associate or there was ignorance leading to intolerance of the trade union movement and murders of trade union activists. The Committee of Experts' report talked about restrictions on the freedom of trade unions which he considered to be absolutely unacceptable. Any society would be strengthened and would be organized better when the people who participated actively in society had the right to do so freely and could use their influence in the building of society.

The Workers' member of Ecuador deplored that this case had been treated on various occasions and that the successive Government representatives had limited themselves only to promises to implement changes, which were never fulfilled. He noted that the legal provisions criticized by the Committee of Experts had an historical context of repression and state terrorism and brazenly contradicted the Convention. The legislation was among the most backward in Latin America. He did not accept the excuse of the Government representative that the Congress could reject the Government's proposed amendments to the legislation. He believed that there was a lack of firm political will on the part of the Government to change the situation, which was under the influence of certain economic sectors impeding advancement. However, he commended the Government representative and the Employers' member of Guatemala for expressing their desire to work towards peace. This implied, in particular, respect for human and workers' rights, the creation of appropriate conditions for them, and the establishment of a tripartite commission, which would review and bring about amendments to the legislation. Lastly, the speaker stated that the conclusions of the Committee should be very firm and perfectly clear that next year the Government should present concrete changes to the legislation rather than simple promises.

The Government representative expressed thanks for the frankness of the comments and criticisms made. He noted, however, that in certain cases there had been some inaccuracies, and that the existence of political and social turmoil had not been taken into account. He indicated to the Workers' member of Spain that, for his Government, the value and importance of the trade union movement to solve the problems of Guatemala was quite clear. The speaker referred to an ILO official document which highlighted the serious consequences of war and the grave social and economic problems of the country, as well as the danger of social explosion. Peace, cooperation and consultation were three key elements to promote freedom of association and collective bargaining and to overcome the social problems of the country which could not be resolved overnight. With regard to the request for information from the organs of the ILO, the Government had never used the excuse that there was a lack of resources and that the delays were due to an administration in crisis: documents containing vast information had been submitted this week. With regard to the tripartite committee, it not only existed but had held a dozen meetings, thereby establishing itself as a new forum for dialogue which had already produced results. For example, top quality and high ranking Workers' and Employers' delegates for this Conference had been elected. With regard to the statement of the Workers' member of Denmark, the Government representative stressed that the recommendations of the Committee of Experts could be complied with when an atmosphere of peace had been established in the coming months, permitting further steps and enabling the tripartite committee to make proposals reached by consensus, which could be approved by a legislative authority. He expressed anguish that the Government was not able up to now to comply and gave its commitment to amend certain legislative decisions of the recent past. There would be consistent efforts in various areas for the promotion and protection of all human rights and in particular to protect peace and security, to fight against impunity and excessive privilege and to improve living conditions. Since the current problems were so wide-ranging, miracles could not have been achieved during the five months of office of the current Government. However, the initial results were on the horizon and in this respect, the Government representative thanked those speakers who had recognized that some things had been achieved. The Government representative enumerated three fundamental points: (1) what was occurring in the country was due to a deliberate plan of change and transformation towards in-depth democratization; (2) the situation dealt with building a national and international policy taking into account the country's real objectives, fully acknowledging the reality and the truth of what had occurred and what was happening, in order to find realistic and practical solutions; this truth also meant having shared responsibility and transcending differences to accomplish national reconstruction; (3) the situation concerned a global effort from society as well as the Government. All citizens should make efforts and be responsible for reconciliation and reconstruction. Opposition to negotiations was equivalent to supporting the continuation of war. The Government would do everything for its part to make further progress on the road to peace and to strengthen democracy. This policy reiterated the Government's commitment to honour its obligations to the ILO. The Government representative requested the ILO's technical assistance and presence in Guatemala.

The Workers' members stated that they supported the observations of the Employers' members that the legislation in Guatemala granted too much discretion to the Government to intervene with the exercise of the right to strike. However, they did not support the statements of the Employers' members on the essential nature of the agricultural sector during harvest. In this respect, they supported the point of view of the Committee of Experts and the Committee on Freedom of Association. The Workers' members also noted that the discussion had made it clear as to the seriousness of the problems and that there had been very few changes over a long period of time. In this connection, the Workers' members of the National Tripartite Commission which had participated in today's discussion, had highlighted the seriousness of the problems as well as the lack of political will. The Workers' members reiterated their prior statements on the conclusions which this Committee should adopt which should suggest to the Government that it seek the technical assistance of the Office to achieve progress.

The Employers' members noted that the report of the Committee on Freedom of Association on this case indicated, among other things, that, with respect to protection against anti-union discrimination, the legislative system was in conformity with Convention No. 98, and that was why in 1994, the Committee of Experts noted this as a case of progress. This demonstrated how it was possible to bring about improvements. Guatemala could do it here too, with respect to Convention No. 87, as there was still a lot of room for improvement in this case. The Employers' members observed that appropriate legislation did exist in many areas, but it was not being enforced and implemented in practice and that was where the problems often arose. For this reason, the current circumstances in the country which had been referred to several times today, were very serious. This lack of enforcement and implementation stood in the way of objectives being achieved. Thus, more than just good intentions were needed. What was needed was political determination to enforce change and to adopt new legislation to promote the principle of freedom of association. The Employers' members expressed the hope that the Government would make rapid efforts and speedy progress, and that detailed and specific reports would be provided. They also expressed the hope that technical assistance from the ILO could contribute to improvements being realised very soon.

The Government member of El Salvador stated that he fully supported the statement of the Employers' members that "peace was a prerequisite for positive development". Violence had existed in Guatemala for 30 years and it was essential that the ILO assist Guatemala and give it the benefit of the doubt. The speaker fully supported the Government of Guatemala with regard to the struggle for peace and noted that, when peace was achieved, the Government of Guatemala would be able to comply with its international obligations.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

Article 2 of the Convention (Right of workers and employers to establish and join organizations). The Government indicated that the substantive and procedural conditions are contained in Title 6 of the Single Chapter of the Labour Code and in Government Agreement No. 639-93. There is no specific legal provision covering special categories of workers.

Article 3 (Right of workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities). The law provides that trade unions are permanent associations of workers or of employers or of self-employed professionals or tradespersons established exclusively for the study, improvement and protection of their economic and social interests.

Article 4 (Dissolution and suspension of organizations by administrative authority). Dissolution is governed under sections 226-229 of the Labour Code.

Article 5 (Right of organizations to establish federations and confederations and to affiliate with international organizations). Section 233 of the Labour Code provides for the establishment of federations and confederations, and states that they can be at the national or regional level or according to branch of activity. This provision does not provide for membership of international organizations.

Article 6 (Rights of federations and confederations of workers' and employers' organizations). The establishment of federations and confederations is governed by the same provisions as those concerning the establishment of trade unions (Title 6, Single Chapter of the Labour Code).

Article 7 (Legal personality of workers' and employers' organizations and of their federations and confederations). This matter is dealt with under Title 6, Single Chapter of the Labour Code.

Article 8 (Exercise of the rights of workers, employers and their respective organizations). The requirements under this Article are taken into account particularly under the following constitutional provisions: articles 5, 24, 28, 29, 33, 34, 35, 138 and 139.

Article 9 (Trade union rights in the armed forces and the police). There is no relevant legislation in force. In accordance with custom and national practice, there is a presumption against the establishment of trade unions in the armed forces and police. With regard to the 1993 comments of the Committee of Experts, the Government will take action shortly to eliminate the divergencies indicated. However, the legislative function is exercised exclusively by Congress.

A Government representative referred to the written report provided by the Government. She expressed her appreciation and recognition for the work developed by the ILO, particularly by the present Committee. She indicated that she had appeared personally in order to demonstrate the Government's commitment to obtaining a solution to the difficulties which persisted in this matter, notwithstanding the efforts already realized. Guatemala had been affected by a terrible armed conflict during the last 35 years, as a consequence of the cold war and of internal conditions. The Government was seeking peace through the signing of accords to resolve differences. In this difficult process, Guatemala was being assisted by friendly nations and by the United Nations, which were acting as mediators in the process and which moreover were collaborating through MINUGUA in the monitoring of the global accord on human rights. During his recent visit to Guatemala, the President of Mexico recognized, on behalf of the friendly countries involved in the peace process (Norway, United States, Spain, Mexico, Colombia and Venezuela), the reconciliation work of the Government of the President of the Republic of Guatemala, and emphasized the importance of counting on the help of the international organizations and agencies to consolidate the desired peace in Guatemala. Additionally, the speaker described the importance of the presence of the ILO regional office in Central America which had permitted the improvement of relations with the ILO and at the same time enhanced the use of consultants and technicians to modernize the Ministry of Labour and make it more efficient.

Moreover, the Government emphasized the valuable work of the direct contacts missions to Guatemala, the results of which were appropriately recognized. The mission provided the opportunity for dialogue with the different sectors and evidenced the policy of the President of the Republic to open the country to collaboration with the international community in order to develop together solutions to the social problems of the country.

Concerning the observations of the Committee of Experts on the Application of Conventions and Recommendations, the speaker stated that Guatemala had already completed the reports which were referred to in the report of the Committee of Experts. Those reports had been delayed due to the lack of employees in the Ministry of Labour who were familiar with this specialized area. In the future, the Government would take measures to ensure that the reports arrived on time.

Concerning the observations formulated in relation to the Convention, the speaker stated that since the 1970s four attempts had been made to develop a new Labour Code in Guatemala, in place of the Labour Code of 1947, and that committees had been formed to develop each of these drafts, but without results. In December 1992, the modification of certain articles was achieved with the promulgation of Legislative Decree No. 64-92. Nevertheless, such modifications were minimal and in non-controversial areas, in comparison to the total reforms proposed. Regrettably, the propagation of a new Labour Code or reform of the existing Code always encountered opposition in a polarized society such as Guatemala. Consequently, it was difficult to complete accords, largely due to the persistence of internal armed conflicts. In spite of that, the modifications introduced in 1992 were elaborated with the participation of the workers' and employers' sectors, and of the Government. The Government believed that this exercise needed to be repeated. After the failed coup, which occurred in May 1993, a process to streamline the machinery of the State was initiated and in 1994 there was an excessive purge of Congress. The present delegates were due to turn over their posts in January 1996, making it difficult to adopt legislative reforms in the immediate future. None the less, the Ministry of Labour would convene a meeting with the employers' and workers' sectors to analyse the recommendations of the Committee of Experts. Such a situation should not be an obstacle for the Ministry of Labour and Social Security, which had already taken measures to promote freedom of association. In October 1993, only two months after assuming its duties, the Ministry sponsored various seminars and exercises intended to reduce the administrative steps required to obtain authorization for unions, and eradicated unnecessary formalities which had amounted to over 127 bureaucratic steps. The procedure was simplified significantly and eliminated the obligation to comply with the statutes propagated by the President of the Republic. Moreover, new reforms were introduced recently to facilitate a more straightforward procedure. This reform established a process requiring approximately 55 days to obtain legal recognition of a union (in accordance with the provisions of the revised Labour Code).

Lastly, the speaker reiterated the political will of the President of the Republic to continue taking measures and adopting actions to facilitate the existence of a culture of tolerance and to consolidate a lasting and firm peace through political accords based on dialogue and compromise. Only then would it be possible to dedicate all of the resources of the country, human as well as material, to solve the significant challenges which stem from underdevelopment, such as health, work, education and the modernization of production. Guatemala needed the understanding and help of the international community because it was easy to confuse the scarcity of resources with the absence of policies. Success must be obtained in cooperation, because peace was not only the absence of war.

The Workers' members appreciated the information provided by the Minister of Labour concerning the difficult political situation of the country and the initiatives taken to adopt a new Labour Code. It was recalled that the case had been discussed in 1991 and 1993, and that a special paragraph had been adopted firmly insisting that the Government send detailed information on measures taken to bring the legislation into conformity with the Convention; that it eliminate the discrepancies between legislation and practice on the one hand, and non-compliance with the Convention on the other; and that it take the necessary measures to prevent serious attacks on freedom of association, such as had occurred. At that time, the Government representative made promises to that effect. Nevertheless, the Committee of Experts did not receive the Government's report on time; and when it did report, the Government did not provide any new information but rather limited itself to expressing vague intentions to take steps to eliminate the aforementioned discrepancies. This was regrettable, given the grave problems which existed in the lack of conformity of the legislation with the Convention. Furthermore, the Committee on Freedom of Association, upon examining various cases, had identified the flagrant violations of freedom of association in practice: the difficulties unions faced in organizing and operating; dozens of cases of threats, aggression, assassinations, disappearances and dismissals of union activists. Paramilitary groups, police, and directors of national and international enterprises were clearly responsible, but were allowed to act with impunity. The sectors most affected were agriculture, forestry, and the free enterprise zones. Additionally, the employers promoted the creation of "solidarist associations" to weaken trade union organizations and undermine the right of collective bargaining (reference was made to the case of four enterprises in particular); and it was estimated that the members of such "solidarist associations" numbered in the thousands.

In addition, the Workers' members emphasized the gravity of the problems, which were highlighted in the report of the Committee of Experts, which made difficult the creation of unions, the free election of representatives (a worker must have been active in the enterprise and without a prior criminal record), and the exercise of the right to strike (the excessive requirements made impossible the lawful exercise of the right). Although in 1992 improvements had been made in the law, the formation of unions still tended to be a complicated process. The Committee should adopt firm conclusions, given the gravity of the situation and the fact that the Government had not completed the promises which it previously made to the present Committee. It was also necessary to: guarantee and protect the physical and moral integrity of union activists; increase the number of labour tribunals; reinforce labour inspections; facilitate the system for forming unions and eliminating administrative procedures; and collaborate in the development of a stable and efficient system of labour relations, where freedom of association was not violated by enterprises or the public authorities. The Workers' members hoped that in the near future tangible results could be obtained.

The Employers' members agreed with most of the points made by the Workers' members. This case had been dealt with a total of six times in the course of the 1980s, and then again in 1991 and 1993. This year, the Committee of Experts did not have any report from the Government and therefore had no option but to reiterate its previous observation, despite the fact that in 1993 the present Committee had concluded by asking urgently for a full report on any progress made. On that occasion, the Government had promised that things would change very soon, but these promises were linked to the appointment of the new President of Guatemala, who was to personally ensure the fulfilment of the changes.

In fact, not very much had changed since then. The comments made by the Government representative on the whole dealt with the general political situation and the problems the country had encountered over the past 30 years. It referred to some changes which had occurred but which were not the object of observations of the Committee of Experts. The Workers' members had already listed the main points of concern: supervision of trade union activities; the nationality requirement for exercising union office; the requirement that workers be active in the enterprise in order to exercise union office; and the requirement that workers demonstrate that they did not have a criminal record. These demands certainly could not be reconciled with the terms of Convention No. 87, so here too the Employers' members supported the call for change, which was made in 1991, in 1993, and repeated now.

The Employers' members clarified that it did not support the demands made in connection with the right to strike because they could not be derived from the terms of the Convention and contemplated the right to strike in a very specific way which the Employers' members could not accept. But as for all other points, the Employers' members agreed fully with the Committee of Experts.

So what had become of the promises which were given in 1993? The present Committee said at the time that it hoped that the new political leadership would introduce changes for the better because the new President had the reputation of being somebody who was a great defender of human rights. But the Committee of Experts had not even received on time a detailed report from the Government and the information received later, which had been provided to this Committee, was not very impressive and did not provide any concrete information, and again contained a vague promise to act in the future. The Government representative stated that it was extremely difficult to achieve any change in the short term. This was less than what had been promised in 1993. Undoubtedly, the Government had good intentions, but it was evident that change came about very slowly. The Committee should adopt very firm conclusions, as the Workers' member had demanded, and should demand a report on any measures taken. The Employers' members indicated that they reserved the right to request examination of this case next year.

The Workers' member of Guatemala declared that the statement made by the Workers' members fitted reality and that violations of the Convention at the level of the legislation had existed since 1952, the date of Guatemala's ratification. Furthermore, the Government had not submitted a report on time to the Committee of Experts, and when it did (in May 1995) it did not consult the workers' organizations. The criticisms of the Committee of Experts concerned restrictions on freedom of association, on the right to strike, and on collective bargaining, all of which existed in legislation as well as in practice. The speaker referred to various recent cases of attempts on the lives of union activists, and cases which illustrated the ineffectiveness of the labour courts concerning problems of collective bargaining. The Committee of Experts should continue to examine these problems on an ongoing basis. This would be a significant help in the actual peace process, which required respect for economic, social and political rights, to be able to solve the causes of the armed conflict.

The Workers' member of Colombia expressed solidarity with the Guatemalan union movement and observed the painful situation which the workers endured. It was disturbing that the Government had not sent its report on time, and that it had sought to excuse itself by invoking the search for peace. Peace required respect for the lives of workers and union activists, and respect for other rights pertaining to the organization of workers. The protection of the right of unions to organize, which existed in Guatemalan legislation, was more formal than real. It should be observed that the Government had failed to act firmly when enterprises proceeded with massive anti-union dismissals, or when obscure forces repeatedly assassinated or kidnapped activists. The speaker referred to specific cases of assassinations and kidnapping of union activists. The speaker concurred with the statements of the Workers' members and firmly requested that the Committee formulate stronger declarations. Lastly, the speaker requested that the ILO continue to follow all of the issues related to freedom of association.

The Workers' member of the United States stated that the observation of the Committee of Experts concerning Guatemala appeared relatively bloodless in its legalisms, but the facts in Guatemala were anything but bloodless. There existed a horrible record of the role of police, paramilitary and death squads in what the archdiocese in Guatemala City had described as the "systematic practice" of repression against the trade union movement. What amendments had been made to the 1947 Labour Code had rarely been enforced so that the protection for organizing that appeared in print was either ignored or misapplied. There existed a practice of repeated and horrific reprisals. For example, since the present Committee last met, the leader Edi Conde was abducted by four armed men in police uniform and interrogated, beaten and threatened with death unless he left the country. The AFL-CIO, with the Postal Telegraph and Telephone International, helped the Secretary-General of the Energy Workers' Federation of Guatemala to go to El Salvador to seek refuge and safety. In March, the Finance Secretary of the union at the "PCA Maquiladora" enterprise was cruelly murdered. UNSITRAGUA alone had lost eight leaders and members since mid-1994. When the Coca-Cola bottling plant or other employers claimed that the workers lacked the majority necessary to form a union, the present Committee should not focus only on the fact that the Labour Code required a two-thirds majority for a strike, in violation of the Convention, but also on the existing atmosphere of violence and intimidation so extreme that it did not require a cynic to say that many killings of union members prevented unions from reaching the required quota for registration. In light of the lack of freedom of association, it was time for this Committee to firmly insist that Guatemala bring its legislation and its practice into conformity with the Convention.

The Workers' member of Iceland, speaking on behalf of the Nordic Workers' members, stressed that everyday reports were received on acts of violence aimed at disturbing the functions of trade unions in Guatemala. While this was going on, it was confirmed time after time that no action was being taken by the authorities in order to combat the paramilitary groups, such as the "Jaguar Justiciero", which were responsible for these acts of violence. Guatemala had ratified a total of 67 Conventions, 62 of which were supposed to be in force, including Conventions No. 87 and No. 98. While reading the list of Guatemalan trade unionists who had lost their lives in the last few years as a result of their struggle to better the condition of workers in Guatemala, and observing that nothing was being done by the authorities to prevent it, it was almost impossible to see that the Government of Guatemala had meant a word of what it said by ratifying the human rights Conventions. Freedom of association had little meaning under circumstances such as this. Ratifying Conventions without taking action to implement them in practice was an abuse of the ILO and a disgrace. However, the speaker noted that the representation of Guatemalan workers at the present Committee this year included an independent trade union organization, and expressed the hope that this was a sign of better times.

The Workers' member of Panama condemned the situation in Guatemala relating to labour and union rights; the difficulty of maintaining unions under such conditions, and, above all, the crimes committed against union activists. The speaker indicated that the workers' organizations from Panama had visited the Embassy of Guatemala to demand respect for the right to life of the workers, as well as the protection of other rights. The ILO should continue to examine all of these issues to ensure that the Government fulfilled the commitments which resulted from the ratification of the Convention.

The Government representative took note of the statements which were made and regretted the cases of violence referred to by various speakers. Many of those cases were being examined by the direct contacts mission which visited the country, and would be examined by the Committee on Freedom of Association, whose conclusions the Government awaited. The speaker indicated that the Government had already submitted all of the reports required by the Committee of Experts. She reiterated the Government's wish to convene a meeting with workers and employers to examine the recommendations of the Committee of Experts concerning the Convention, with the objective of bringing the legislation into compliance with the Convention as soon as possible.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative recalled the institutional events of May 1993 which had led to a change of government. The resignation of the Minister of Labour and Social Welfare prevented a reply being sent in time to the observation made by the Committee of Experts. The new President of the Republic was a defender of civil liberties and his election was made possible with the general agreement of all the political tendencies and with the support of the workers and the employers. He assured the Committee that the Government's comments on the Committee of Experts' observations would be submitted to the Office.

The Workers' members welcomed the information concerning the recent political developments and expressed the hope that the consolidation of the democratic system would allow for favourable developments to take place in the social domain. This Committee had already dealt with this case many times. It had been the subject of a special paragraph in its 1985 report and had also been discussed at length in 1991. While noting certain improvements, the observation of the Committee of Experts showed that the more important problems remained and listed the discrepancies that existed. Moreover, the observation pointed out that new problems had appeared with respect to the Convention resulting from new provisions of the Labour Code imposing new obligations, such as the sworn statement that was required from members of the executive committee of a trade union to the effect that they had no criminal record. A serious situation of violence and insecurity persisted in the country where trade unionists were threatened with murder or abduction, or just disappeared, with the participation of the army and death squads. In the context of a difficult transition towards democracy, this Committee had to remain firm in its demand for total and unconditional respect of freedom of association and had to ask the new Government to give effect quickly to the observations of the Committee of Experts by taking the measures that were necessary.

The Employers' members pointed out that although the legislation dating from 1992 had given rise to certain problems, as pointed out by the Committee of Experts in their report, there had been positive developments. Each discrepancy between the legislation and the Convention had been listed individually by the Experts. The Employers' members agreed completely with most of these points on which they felt some amendment to the legislation was required. However, they did not agree with the Committee of Experts' interpretation of the precise requirements with regard to the right to strike, which in their view could not be construed from the Convention in such specific terms. With regard to the recent political events, although it had been a very turbulent period in Guatemala, there was a new President who had said that he stood for the respect of human rights. They trusted that a comprehensive report would be sent by the Government in the future which would contain information on changes in line with the request made by the Committee of Experts.

The Workers' member of Guatemala indicated that the violations of freedom of association had only deteriorated until the events of May 1993 but that he hoped that the situation would improve in this domain, and in particular that this Convention would be fully respected. A tripartite agreement had allowed for the adoption in November 1992 of a law introducing major amendments to the Labour Code on several points. However, these reforms would be insufficient if the political will and decision to understand, to respect and to ensure respect of national legislation as well as of international labour standards on freedom of association was lacking.

The Employers' member of Guatemala emphasized the importance of the reform of the Labour Code described by the previous speaker. These amendments were the result of a tripartite dialogue aimed at adapting the provisions of the national legislation to the Convention. These amendments were very far-reaching, which recognized the impossibility of dismissing all the members of a union in the process of being established, reduced the number of workers required to establish a trade union and streamlined the procedures pertaining to the establishment of a trade union. With regard to the restrictions raised in the Committee of Experts' observation, it would be appropriate to ignore them given that most of them did not exist in practice. The provisions of the Labour Code mentioned by the Committee of Experts were not applied and there were no means of ensuring their respect. The Courts had not rendered any decision on the basis of these provisions of the Labour Code which remained a dead letter. At that time the situation Guatemala was very different from that which prevailed a decade ago. Important progress had been made which favoured dialogue and good tripartite understanding.

The Workers' member of Germany also welcomed the new political conditions which prevailed in the country but stated that he could not agree with the Employers' member of Guatemala who considered that there were no difficulties. With regard to this Convention in particular, the Committee on Freedom of Association in a recent report had expressed its serious concern and had clearly shown how the different provisions were not respected by the Government.

The Workers' member of Guatemala, although not denying the merits of the amendments introduced to the Labour Code in November 1992, once again stated that its application had to be ensured. Agricultural workers who wished to establish organizations of rural workers were accused of being subversive or guerrillas. In June and October 1992, secretary-generals of trade unions had "accidents", of which one was fatal. This meant that attention had to be paid to the manner in which trade union rights could be exercised in practice in the future.

The Government representative stated that she had taken due note of the observations of the speakers and assured this Committee that the next report due on the application of the Convention would contain all the comments that her Government would wish to formulate on this matter.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative of Guatemala stated that his Government received with interest the observation made by the Committee of Experts on the application of Convention No. 87. He noted, however, that certain clarifications were necessary in the following general catego ries: (a) questions which are considered to be resolved by the new Constitution of the Republic leaving only the need to derogate these provisions by the creation of new laws as requested by the Committee of Experts; (b) the provisions which were already expressly repealed; and (c) a specific case where the Constitution is in contradiction with the Convention. The speaker pointed out that efforts had already been made, with the assistance of the ILO, to update the consolidated labour legislation and thus bring it into conformity with international labour standards. As a result of these efforts, the previous Government presented the Congress of the Republic with a draft of a substantive and a procedural Labour Code, as well as a basic Labour and Social Security Act. However, the legislative process discontinued due to the fact that various sectors of society had declared themselves against these draft texts. Nevertheless, the new Government had begun and implemented a Social Covenant as a general expression of tripartism, never before seen in the country. Within the framework of this Social Covenant, the Government was taking steps towards the institutionalisation and harmonisation of the country's labour legislation with international labour Conventions. The speaker pointed out that, taking into consideration the political circumstances which complicated the process of promulgation of a new labour legislation, the Minister of Labour and Welfare was promoting, on the basis of tripartite consultations, the approval of a certain number of transitional reform measures to the Labour Code. This would be done in a way so as to incorporate international labour standards in the law. In this way, these amendments, together with the draft codes based upon the tripartite consultation process under the Social Covenant, were part of a global strategy for improving the legislation. The speaker gave assurances that his Government would send all the documentation pertinent to this case to the Committee of Experts and the Minister of Labour and Welfare would see to it that the discrepencies which had been pointed out and which were not contrary to the Constitution of the Republic would be eliminated by the labour legislation once the Social Covenant was concluded. The Government representative recalled that the present Labour Code, which is now being revised, dated back to 1948 and the Constitution of the Republic entered into force in January of 1986. Many of the observations made by the Committee of Experts would be resolved by the Constitution. He concluded by stating that ILO assistance would be welcome to conclude the current reform of the labour law in the most technical and efficient way possible. This assistance was being discussed with the ILO.

The Workers' members noted the information provided by the Government concerning the changes made since the last time this case was discussed. They recalled the discrepancies noted in the Committee of Experts' report between the legislation and the provisions of the Convention. In this respect, they noted that there were six essential problems: (1) the strict supervision of trade union activities by the Government; (2) the dissolution of trade unions that have taken part in matters concerning electoral or party politics; (3) the limitation on the eligibility for trade union office to Guatemalan nationals only; (4) the requirement of a two-thirds majority vote for the calling of a strike; (5) the prohibition of strikes by agricultural workers at harvest time by workers in enterprises or services in which the Government considered that a suspension of their work would seriously affect the national economy (they recalled in this regard that the Committee of Experts had determined that the right to strike could only be limited for essential services, i.e. those services in which a strike would endanger the life, personal safety or health of whole or part of the population); and (6) the heavy prison sentences for those who carry out acts intended to paralyse or distub the functioning of enterprises contributing to the development of the national economy with a view to jeopardising national production. They noted that the Government representative's statement had demonstrated that more progress was made than reflected in the Committee of Experts' report as apparently the draft Labour Code was presently being discussed in the legislature. Finally, they requested a clarification from the Government representative concerning the pursuance of tripartite consultations to resolve these problems.

The Employers' members recalled that this case had been discussed several times in the early 1980s and that three years had passed since it was last discussed. They generally associated themselves with the comments made by the Workers' members, but declared their reservation concerning the right to strike as they were of the opinion that the details concerning this right could not be deduced from Convention No. 87. In their opinion, this case also demostrated that the formula defining essential services was very narrow and did not take into consideration the particularities of a given case. They wondered whether, in a country which depends on agricultural products, it would not be useful to consider harvesting as an essential service. In spite of this particular point, they note that there were still a number of contradictions between the legislation and the provisions of the Convention. They noted the Government representative's indication that amendments to the legislation and in particular to the Labour Code were being elaborated. They recommended that the Government be asked to accelerate this process and to provide these texts as soon as possible so that the Committee of Experts could supervise the application of the Convention.

The Government representative of Guatemala welcomed the interest reflected in this type of concrete questioning. He pointed out that, as concerned the strict supervision of trade union activities by the Government, the participation in political parties of trade union leaders, the problems concerning eligibility of non-nationals for trade union office, the majority necessary to call a strike, the prohibition of strikes by agricultural workers and strike in essential services - these elements and circumstances were taken into account in the Constitution of 1986. The restrictive standards bearing upon freedom of association had been repealed or derogated by this later law. The Government would make an effort to ensure that the process followed for reviewing the legislation would bring the country standards into full conformity with the Convention. The Government respected certain trade union rights which were discretionary, such as the election of trade union officers. As concerned the sanctions against those who paralyse the national economy, he pointed out that the Constitution was very clear about the types of conduct which were illegal and the minimum rights guaranteed to the worker, including the right to strike. As regards the question concerning whether an agricultural country, such as Guatemala, could restrict the right to strike of agricultural workers, he pointed out that his country adopted the universally recognised definition of the international bodies on essential services which only limited the right when it could endanger the health, safety and welfare of the population. He reitered that in his country there was the conviction that the legislation should be changed so as to be in compliance with international labour Conventions, but that these changes should be made in a spirit of tripartism and consensus in conformity with the well-being of all sectors of the country.

The Workers' members thanked the Government for the clarifications given to the questions raised and requested that the new legislation be sent to the Office for review as soon as possible.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s report, the discussion that took place in the Conference Committee on the Application of Standards in 2010 and the 11 cases before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2708, 2709, 2768 and 2811). In its previous observation, the Committee took note of the high-level mission which visited the country in April 2008 and of the tripartite agreement signed during the mission with a view to improving implementation of the Convention. It also noted the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009 and a final mission to provide assistance to the Tripartite Commission in formulating the road map to address the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee noted that in the end there was no consensus between the social partners and that the Government prepared the road map on its own. The Committee notes that the Government states in its report that in April 2010 a training course was held on international labour standards for staff of the Attorney-General’s Office, judges, magistrates, and staff of the Human Rights Ombudsman’s Office and of the Ministry of Labour, with ILO technical assistance. The Committee notes that the Government has agreed to the mission, requested in June 2010 by the Conference Committee on the Application of Standards, involving the visit of an important and recognized personality with high-level ILO support to examine outstanding issues and make recommendations. The Committee notes the Government’s suggestion that the mission be held in early 2011.

Acts of violence against trade unionists

For several years, in its observations the Committee has noted acts of violence against trade unionists that have gone unpunished, and has asked the Government to send information on developments in this regard.

The Committee notes that, at the proposal of a high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which there are to be evaluations of: “(1) institutional action, including the most recent activities, and in particular the special protection measures to prevent acts of violence against trade unionists who are under threat; and (2) of the measures that are being taken (increases in the budget and in the number of investigators) to guarantee that effective investigations are conducted with sufficient resources so as to be able to elucidate the crimes committed against trade unionists and to identify those responsible”.

In its previous observation, the Committee noted that both the International Trade Union Confederation (ITUC) and the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) refer in their comments of 2009 to serious acts of violence against trade union leaders and members during the period 2008–09, and report a climate of fear and intimidation the aim of which is to undermine existing trade unions and prevent the establishment of new ones. Both organizations also emphasize the deficiencies in the labour inspection system and the crisis in the legal system. The Committee expressed the hope that, in the context of the tripartite agreement concluded during the high-level mission, all the matters raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, and the mechanism for rapid intervention in cases. The Committee notes with regret that there is nothing in the Government’s report to suggest that a tripartite review of these matters has been held, and once again strongly requests the Government to take all available measures to ensure that these issues are examined without delay by the abovementioned Tripartite Commission.

The Committee notes the extensive comments of 30 August 2010 on the application of the Convention, submitted by the MSICG. It notes that according to the MSICG, in 2009 and 2010 there have been numerous acts of violence against trade union leaders and trade unionists, ranging from murders (47 since 2007, seven of them in 2010), death threats and acts of intimidation, to abductions, torture or armed assault (with guns or knives); there has also been unauthorized entry of homes of trade unionists and trade union premises. According to the MSICG, in some cases the State did not authorize the security measures requested by the persons threatened and the Office of the Public Prosecutor is not investigating all the cases since some complaints have not even been entered in its database. The MSICG also cites instances of obstacles or administrative hurdles to the establishment or running of trade unions, and of unions being destroyed while organizing. More than 20,000 public sector workers have no employment relationship but a civil contract for professional services and, hence, no trade union rights. Furthermore, trade union activity has been criminalized, with penal action being brought against trade unionists for holding peaceful demonstrations and attacks on trade unions in anti-union publications or through smear campaigns. According to the MSICG, there have also been numerous instances of trade unionists being transferred, dismissed or removed from office on anti-union grounds; there are also acts of interference by employers. Furthermore, to the detriment of existing unions, the authorities have promoted “parallel” workers’ organizations that are under their control and it is the latter that send delegates to the Tripartite Commission though they have little claim to representativeness. As to legal action, the MSICG emphasizes that slow proceedings with long delays continue to be a problem and that the legal reforms requested by the ILO have not been adopted. Lastly, the MSICG points out that this anti-union climate is reflected in the membership rate (2.2 per cent of the economically active population, of which the public sector accounts for 87.5 per cent).

The Committee observes that many of the assertions in the MSICG’s communication were submitted to the Committee on Freedom of Association in its meetings of November 2009 and 2010. In its conclusions, the Committee on Freedom of Association noted with grave concern that the allegations presented in this case are extremely serious and include numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a unionist’s family member, obstacles to granting legal status to unions, the dissolution of a union, criminal proceedings for carrying out trade union activities, major institutional failures with regard to labour inspection and the functioning of the judicial authorities that have created a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failure to comply with reinstatement orders issued by the courts) and in criminal matters (see 355th report, Case No. 2609, paragraphs 858 et seq.).

The Committee is bound to note that, in terms of violence against trade unionists, the failures in the functioning of the penal justice system and the impunity of offenders, the situation continues to grow worse. The high-level mission of February 2009 noted that in recent years, despite the increase in violence against trade unionists (according to information from government officials), there have been no effective trials or convictions. The high-level mission heard testimony of the general lack of independence of the judiciary and government bodies as regards criminal cases. The Government informed the high-level mission that the situation of violence was generalized and denied any state policy against the trade union movement.

The Committee had noted that the high-level mission of February 2009 reported that a significant increased was needed in the capacity and budget of the Office of the Prosecutor General of the Nation, allowing the number of prosecutors and investigators to be increased substantially; the mission suggested that additional resources be allocated to existing programmes for the protection of trade unionists (44 trade unionists currently benefit from protection measures) and witness protection programmes, and that these programmes be properly coordinated. The high-level mission was of the view that measures should be taken actively to discourage any stigmatization of trade unions and the trade union movement that associates trade union activities with criminal acts. The high-level mission reported a very low membership rate and few collective agreements. According to the MSICG’s comments, this situation has not changed.

The Committee requests the Government to reply in detail to the MSICG’s comments of 2010. The Committee notes the statements made by the Government to the Committee on the Application of Standards to the effect that 30 new inspectors have been recruited to add to the strength of the labour inspectorate, that 70 unions and 45 collective labour accords were registered in 2009 and that most of the murders reported were unrelated to trade union activities.

The Committee wishes to refer to the conclusions drawn by the Committee on the Application of Standards in June 2010, which read as follows:

The Committee noted that the Committee of Experts continued to raise with concern the following issues: numerous serious acts of violence, including murders and threats against trade union members; the stigmatization of trade unions; and legislative provisions and practices that were not in conformity with the rights set out in the Convention. The Committee of Experts had also noted the ineffectiveness of criminal procedures in relation to acts of violence, excessive delays in the judicial procedures and the lack of independence of the judicial authorities which was giving rise to a serious situation of impunity.

The Committee noted the indication by the Government representative that the situation of violence and impunity was generalized and did not exclusively affect the trade union movement. The Government had requested the support of the United Nations to combat impunity and the International Commission against Impunity in Guatemala (CICIG) had been established for that purpose. The Government had requested reports to determine whether or not the murders of trade unionists referred to were due to reasons related to trade union activities. The Government had on many occasions requested ILO technical assistance in relation to all of the problems raised, including violence, impunity and the legislative changes requested, as well as the drawing up of the roadmap. The Government representative stated that tripartite social dialogue had been taking place in the National Tripartite Commission and that four tripartite dialogue round tables had been created at the regional level. He indicated that, following the latest ILO high-level mission, inter-institutional coordination mechanisms had been strengthened. In addition, action had been undertaken for the reinstatement of workers in export processing zones. Training activities had been carried out and the decision had been taken to establish two labour training schools. He stated that, although measures had been taken to reinforce the labour inspection services and the unit in the ministry responsible for relations with the ILO, further technical assistance from the ILO was needed.

The Committee noted that this was an important case that had been discussed for many years and that the Government had received numerous technical assistance missions with a view to bringing the law and practice into conformity with the Convention.

The Committee noted with deep concern that the situation of violence and impunity appeared to have worsened and recalled the importance of guaranteeing on an urgent basis that workers were able to carry out their trade union activities in a climate free from fear, threats and violence. It noted further with concern that the Commissioner of the CICIG resigned on 7 June 2010. The Committee urged the Government to take the necessary measures to ensure the effective operation of schemes for the protection of trade unionists and defenders of freedom of association and other human rights.

The Committee noted with concern that the Government had not shown sufficient political will to take action to combat violence against trade union leaders and members and to combat impunity. The Committee emphasized the need to make substantial progress in sentencing in relation to acts of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee requested the Government to intensify its efforts to bring an end to impunity, including by considerably increasing the budgetary resources allocated to the judiciary, the prosecutors, the police and the labour inspectorate.

Also observing with concern the generalized climate of violence, the Committee recalled that freedom of association could not be exercised in a climate where personal safety and basic civil liberties were not guaranteed. The Committee urged the Government to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunals for protection against acts that were in violation of fundamental rights.

The Committee points out that in the road map it prepared at the request of the Committee on the Application of Standards in 2009, the Government referred to the need to pay greater attention to following up, investigating and concluding cases of violence against trade unionists and that affirmative action was accordingly needed in the interests both of effective and periodical reporting to the Committee on Freedom of Association and of inter-institutional coordination allowing relevant information to be exchanged and brought to the attention of the ILO supervisory bodies. The Government stated its intention of strengthening the Ombuds Unit (unidad de procuración) of the Directorate of International Affairs by appointing qualified staff to deal exclusively with these issues, endowed with the necessary resources to perform their duties and respond immediately to the particular circumstances of each and every case under investigation. In addition, the Government wished to draw up an annual schedule of meetings between the Ministry of Labour (Ombuds Unit of International Labour Affairs) and the Office of the Attorney-General in order to have a framework for ongoing work between the two institutions. Furthermore, the Directorate of International Labour Affairs will draw up an inventory of cases already concluded so as to bring them to the attention of the Committee on Freedom of Association. Furthermore, on the matter of the inter-institutional coordination, the Government stated that the Multi-Institutional Labour Committee for Industrial Relations in Guatemala is being reactivated and will draw up a list of entities that have not yet been included but that are closely involved with these issues.

The Committee notes that in its report the Government states that it is ready and willing to give effect to the content of the Convention. It indicates in this connection that:

–      the Ombuds unit of the Directorate of International Affairs has been reinforced for the purpose of strengthening the ILO supervisory bodies and meeting their requirements thanks to the appointment as from April 2010 of an attorney-adviser and an ombudswoman, which has eased the flow of information on cases reported. Specifically, since then, 127 written requests were sent between April and August 2010, seeking information from various prosecution services of the Office of the Attorney-General, and from magistrates courts, courts of first instance and appeals chambers of labour courts, the Office of the Ombudsman, the General Inspectorate of Labour and the technical and legal advisory departments of the Ministry of Labour and Social Insurance, concerning complaints lodged by workers and trade union organizations. On the basis of this information, the Government sent the Committee on Freedom of Association 37 reports allowing action to be taken on specific objections raised in the cases;

–      assistance from magistrates of the Supreme Court of Justice was obtained at the 99th Session of the International Labour Conference, held in Geneva from 2 to 18 June 2010, the aim being to enable a judicial body to become acquainted at first hand with the application of Convention No. 87 and complaints to the Government of Guatemala on violations of that Convention; and

–      a request was made to the Attorney-General and the Council of the Attorney‑General’s Office in November 2009, and reiterated in January 2010, to hold a special meeting with the Tripartite Commission on International Labour Affairs in order to address the topic “Ensuring effective investigation and trial of those responsible for acts of violence and threats against trade unionists” and to secure “progress in the establishment and strengthening of the public prosecution service for crimes against trade unionists”, which has not as yet been held because selection of a new Public Prosecutor is still pending.

The Committee once again draws the Government’s attention to the principle that a genuinely free trade union movement cannot develop in a climate of violence and intimidation; freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also points out that excessive delays in proceedings and the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

In view of the foregoing, although it has been informed that the Government has sent replies to the Committee on Freedom of Association regarding the cases that depend on the proper working of the Multi-Institutional Committee and on Parliament’s willingness – according to the Government – to increase budgets in the legal system, the Committee concludes with regret that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and trade unionists and to combat impunity. The Committee observes that, according to the Government’s report, the meeting that the Attorney General was requested to hold with the national Tripartite Commission has not taken place. The Committee expresses deep concern at the lack of significant progress, particularly in view of the repeated ILO missions and the very clear and specific recommendations made by the ILO’s supervisory bodies. It is particularly concerned that the Government has provided no comprehensive information and up-to-date statistics on acts of violence against trade unionists, the stages reached in criminal trials and the identification and conviction of offenders; nor has it provided information on any increase in budgets for the state bodies responsible for combating violence and impunity.

The Committee once again firmly requests the Government: (i) to ensure the protection of trade unionists under threat of death; (ii) convey to the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate murders and crimes committed against trade unionists so as to punish the perpetrators; (iii) to ensure the allocation of sufficient resources to these objectives with the consequent increase in human and material resources, to ensure coordination between the various state bodies who may be called upon to intervene in the judicial system, and to ensure training for investigators; and (iv) to give priority to these matters in government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the serious problem of impunity for crimes against trade unionists.

Lastly, the Committee again expresses its deep concern at the acts of violence against trade union leaders and members and reminds the Government that trade union rights can be exercised only in a climate that is free of violence. The Committee expresses the firm hope that the Government will take all necessary measures to guarantee full respect for the human rights of trade unionists and will continue to apply the protection machinery to all trade unionists who so request. It also requests the Government to take the necessary steps without delay to conduct the necessary investigations to identify those responsible for acts of violence against trade union leaders and members so that they are prosecuted and punished in accordance with the law. The Committee requests the Government to report on all developments in this regard. The Committee expresses its concern that the information provided by the Government refers only exceptionally to cases in which those responsible have been identified and punished, and emphasizes the need for considerable reinforcement of the criminal justice system.

Legislative problems

The Committee has for several years been commenting on the following provisions, which raise problems of consistency with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have 50 per cent + 1 of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code) and delays in the registration of trade unions or the refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      the Civil Service Bill; in its previous observation, the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and

–      the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or other employment benefits, other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this principle in case law has not been given effect in national practice, according to technical assistance reports, and the comments of the MSICG.

With regard to these matters, the Committee notes that, at the proposal of the 2008 high-level mission, the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98. This agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and breach of due process, failure to enforce the law and sentences, etc.), and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes that this assistance has already started.

The Committee observed that the road map set deadlines for the submission of bills pertaining to the legislative amendments requested by the Committee of Experts (the deadline was set for 28 February 2010). It reminds the Government in this connection that a series of proposals to address the legislative problems was drawn up by the national Tripartite Commission in the first quarter of 2009 with the ILO technical assistance missions.

The Committee observes that, according to the road map drawn up by the Government in December 2008:

We have appointed a Lawyers’ Commission in the Ministry of Labour with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of that Commission was already notified to the previous ILO technical assistance mission.

We have in our possession a list of legislative initiatives proposing the adoption of amendments to Decree No. 1441 of the Congress of the Republic, the Labour Code, which are currently being examined by the Congress of the Republic. This shows the political will of the State of Guatemala gradually to resolve the problems arising from the application of Guatemalan labour law.

In addition to the above, an analysis has also been undertaken of the manner in which the right to strike of workers is penalized by the Labour Code and, taking into account the CEACR’s recommendations, a study has already been prepared for submission to the state bodies for a decision.

We have also planned the strategy that we will apply to achieve the objectives set.

The Committee observes that nothing in the Government’s report allows it to note progress in legislative matters. The MSICG likewise indicates that there has been no progress.

The Committee notes that, in the Committee on the Application of Standards, the Government merely referred to certain measures relating to the Civil Service Bill. The Committee notes with regret that there has been no significant progress with the legal reforms requested. The Committee is of the view that greater efforts are called for, and hopes to note progress in the near future. It expresses the firm hope that, with technical assistance from the ILO, the Government will be in a position to provide information in its next report on positive developments in the various issues raised.

Other matters

The maquila sector. For years, the Committee has been noting comments submitted by trade union organizations on serious problems in applying the Convention that relate to trade union rights in the export processing sector.

The Committee noted the comments of 2009 by the ITUC asserting that it is impossible to exercise the right to organize in export processing zones owing to the determined opposition of the employers. Only three unions have been established in the 200 export processing zones that exist and the labour authorities are incapable of exercising control over breaches of the law or failure to apply it in this sector. According to the MSICG, the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee noted that, in its conclusions, the high-level mission of 2008 indicated that “according to the Ministry of Labour and Social Insurance, there are seven collective accords in the export processing sector, but only two of them date from 2007. The remainder date from 2003 or even before. With regard to trade union membership, according to the administrative authorities there are six unions and a membership of 562 in the export processing sector, which employs around 200,000 workers. In the view of the executive committee of the trade union movement, there are only two unions in this sector. Whatever the correct figure, there is clearly only a minimum level of trade union activity and collective bargaining in export processing zones and hence a problem in applying Conventions Nos 87 and 98”. In its report, the Government states that there are seven active trade unions in maquila and textile enterprises and one approved collective accord for the period 2008–10.

According to the Government, in 2008 the General Inspectorate of Labour dealt with 33 complaints relating to freedom of association and protection of the right to organize. Some cases were settled by conciliation, others are still pending. In 2009, the General Inspectorate of Labour dealt with 30 complaints relating to freedom of association, most of which are still being processed. In 2010, the General Inspectorate of Labour has dealt with seven complaints on freedom of association, all of which are still being processed. Lastly, the Government appends a document, dated 15 January 2010, addressed to the Public Prosecutor and the Attorney-General.

The Committee requests the Government to provide information on the exercise of trade union rights in practice in export processing zones (number of trade unions, size of their membership, number of collective agreements and their coverage, complaints of violations of trade union rights and decisions taken by the authorities, and the number of inspections). The Committee expresses the hope that the Government will continue benefiting from technical assistance from the Office so that the Convention is given full effect in the export processing sector, and requests the Government to provide information on this matter. It requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector to the national Tripartite Commission, and to supply information in this regard.

National Tripartite Commission. The Committee notes that in this Commission there are problems with the recognition by all concerned of the workers’ representatives, due to a division in UNSITRAGUA. The Committee notes that the Government has requested ILO technical assistance in this matter. The Committee hopes that the Government will receive the requested technical assistance.

[The Government is asked to supply full particulars to the Conference at its 100th Session and to reply in detail to the present comments in 2011.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in 2009 and the ten cases that are before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2700, 2708 and 2709). In its previous observation, the Committee noted the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission with a view to improving the application of the Convention. The Committee notes the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009, as well as a final mission to provide assistance to the Tripartite Committee for the Formulation of the Road Map on the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee notes that in the end there was no consensus between the social partners and the Road Map was prepared solely by the Government.

The Committee also notes the detailed comments on the application of the Convention made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 and by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in defence of the rights of workers in a communication dated 28 August 2009 which relate to issues already raised by the Committee, as well as serious acts of violence against trade union members and leaders, obstacles to the process of registering trade union organizations, difficulties in the exercise of the right of assembly of trade unions and other alleged violations of the Convention. The Committee hopes that in the context of the tripartite agreement concluded during the high-level mission all of the matters raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence and impunity against trade unionists

The Committee recalls that for several years it has been noting in its observations acts of violence against trade unionists and impunity in this respect, and that it had asked the Government to indicate developments in this respect.

The Committee notes that, at the proposal of the high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which evaluations will be carried out of: “(1) institutional action, including the most recent activities, and in particular the special protection measures to prevent acts of violence against trade unionists who are under threat; and (2) of the measures that are being taken (increases in the budget and in the number of investigators) to guarantee that effective investigations are conducted with sufficient resources so as to be able to elucidate the crimes committed against trade unionists and to identify those responsible”.

The Committee notes that both the ITUC and the MSICG in their comments place emphasis on grave acts of violence against trade union leaders and members during the period 2008–09 and report a climate of fear and intimidation with a view to undermining existing trade unions and preventing the establishment of new ones. Both trade union organizations also emphasize the deficiencies in the labour inspectorate and the crisis of the judicial system.

The Committee notes that in its statements to the Conference Committee and its report the Government indicates that: (1) the State of Guatemala expresses special interest in guaranteeing full respect for the human rights of trade unionists, and of all Guatemalan nationals in general, as well as reiterating the Government’s commitment to combating impunity through the improvement of the judicial system and the labour administration system within the executive authority; (2) the Tripartite Commission on International Labour Affairs met the Public Prosecutor and the Attorney-General with a view to requesting the establishment of a public prosecution service for crimes against journalists and trade unionists, with support being expressed for this request by each of the representatives of all sides; it had also met the Council of the Office of the Attorney-General, together with the Public Prosecutor, to discuss the subject of violence not only against trade unionists, but also against the lawyers representing trade unionists and against workers in general; (3) as a strategy of inter-institutional coordination and with a view to supporting the conduct of investigations, in November 2008 two meetings had been held with representatives of the Office of the Attorney-General, the Ministry of the Economy, the Ministry of Government, the Ministry of Foreign Affairs and the Supreme Court of Justice. The meetings had concluded that, in view of the existence of the Multi-institutional Commission for Industrial Relations in Guatemala, established in 2003, by Government Decision No. 430-2003, it was adequate to reactivate the Multi-institutional Commission to follow up cases of violence against trade unionists and other matters relating to industrial relations in the country, and accordingly to collaborate with the Office of the Attorney-General, and particularly with the Office of the Prosecutor General for the investigation and resolution of the cases; (4) during 2009, the Multi-institutional Commission for Industrial Relations in Guatemala had met regularly, holding four meetings between 1 January and 30 July 2009; (5) progress has been made in the criminal investigations of certain murders; for example, on 10 January 2009, a person was apprehended who had been charged with committing the murder of the trade union leader, Pedro Zamora, and on 15 April 2009 the public prosecutor lodged criminal charges with the judiciary, with the requirement to hold a trial; during the hearing on 4 June 2009, the magistrate found that there was sufficient evidence against the trade union member to conclude the preparatory stage and begin court proceedings; in the upcoming months, the accused will be tried in the criminal courts; and (6) there is no criminalization or stigmatization of trade union activity. The Government attaches a copy of the records of the meetings of the National Tripartite Commission. In a recent additional report, the Government indicates that the accused was not convicted by the court of the murder of the trade union leader Pedro Zamora and that the Office of the Attorney-General will appeal against the ruling.

The Committee refers to the conclusions of the Committee on the Application of Standards, in which it noted with concern numerous and serious acts of violence against trade unionists, as well as the inefficiency of the criminal proceedings related to these violent acts, giving rise to a grave situation of impunity and the excessive delays in legal proceedings. It also noted the allegations concerning the lack of independence of the judiciary. The Committee on the Application of Standards noted the high-level mission which visited the country in 2009, which had emphasized that, while additional resources had been allocated to the investigatory mechanisms to combat impunity, further measures and resources were clearly necessary to that effect. In this connection, it observed with deep concern that the situation in relation to violence and impunity appeared to be worsening and it recalled with urgency the importance of ensuring that workers are able to carry out their trade union activities in a climate free from violence, threats and fear. The Committee on the Application of Standards highlighted the need to make meaningful progress in sentencing in relation to crimes of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee on the Application of Standards observed in this respect the need for the continued strengthening of and specific training for those responsible for investigating violence against trade unionists, as well as an improved collaboration of the various bodies mandated in this regard. The Committee on the Application of Standards hoped that concerted efforts in this regard would finally permit meaningful progress to be made in bringing an end to impunity.

Further noting with concern the important allegations of an anti-union climate in the country and the stigmatization of trade unions, the Committee on the Application of Standards recalled the intrinsic link between freedom of association and democracy. It further noted that, beyond the question of impunity, the conclusions of the high-level mission focused on the need for concerted action in relation to the effectiveness of the judicial system, the effective respect for freedom of association by all parties and the effective functioning of the National Tripartite Commission. In particular, the slowness and lack of independence of the judiciary has given rise to significant challenges to the development of the trade union movement. The Committee of Experts shares the opinion of the high-level mission of 2009 concerning the importance of adopting the necessary measures to ensure that awareness is raised to an adequate level concerning the fundamental role of trade unions in the social and economic development of society and their close links with the consolidation of democracy. For this reason, it is important for measures to be taken to actively prevent any stigmatization of trade unions and the trade union movement.

The Committee on the Application of Standards observed that, despite the seriousness of the problems, there had been no significant progress in the application of the Convention, in legislation or in practice. It urged the Government to redouble its efforts with respect to all the above matters and to adopt a complete, concrete and innovative strategy for the full implementation of the Convention, including through the necessary legal reforms, the strengthening of the programme for the protection of trade unionists and witnesses, and of the measures to combat impunity and the provision of the financial and human resources necessary for the labour inspectorate and the investigative bodies, such as the Office of the Public Prosecutor. The Committee on the Application of Standards expected, with the assistance and necessary technical cooperation of the Office, that the Government and the social partners would be in a position to agree upon a road map with clearly determined time frames for the necessary action in respect of all the above points. The implementation of this road map and any progress made should be reviewed periodically by the ILO. More tangibly, the Committee on the Application of Standards requested the Government to provide a detailed report to the Committee of Experts containing information on the tangible progress made in legislative reforms, the measures taken to combat impunity and the creation of a conducive environment for trade union movement and it expressed the firm hope that it would be in a position next year to note substantial improvements in the application of the Convention.

The Committee of Experts observes that many of the allegations in the MSICG’s communication were submitted to the Committee on Freedom of Association at its meeting in November 2009. In its conclusions, the Committee on Freedom of Association noted with concern that the allegations presented in this case were extremely serious and included numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a family member of a trade unionist, obstacles to granting legal status to unions, the dissolution of a trade union, criminal proceedings for carrying out trade union activities, and major institutional failings with regard to labour inspection and the functioning of the judicial authorities, creating a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failures to comply with reinstatement orders issued by the courts), and in criminal matters (see 355th Report, Case No. 2609, paras 858 et seq.).

The Committee on Freedom of Association regretted the very limited information provided by the Government on a very small number of allegations and concluded that these replies by the Government were an illustration of the excessive slowness of the procedures outlined by the complainant organizations and the resulting climate of impunity.

The Committee of Experts, in the same way as the Committee on Freedom of Association, once again draws the Government’s attention to the principle that a genuinely free trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessive delays in proceedings and the absence of judgements against the guilty parties creates in practice a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

In view of all of the above, the Committee concludes that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and members and to combat impunity and that the conclusion of the Committee on the Application of Standards continues to be globally valid concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendations of the ILO supervisory bodies. In the first place, the Committee emphasizes that the Government has only replied to a very small number of allegations of violence submitted to the Committee on Freedom of Association in Case No. 2609, despite their extreme gravity. Secondly, the Road Map on all the measures requested by the Committee on the Application of Standards in June 2009 was only prepared in the third week of November 2009, days before the meeting of the Committee of Experts. Thirdly, the Government emphasizes in its report the recent reactivation of the Multi-institutional Commission (which until recently dealt with issues of anti-union violence), the request for a special unit of the public prosecution service dedicated particularly to trade unionists (without indicating the decision that was adopted), although very little progress has been made in a very low number of cases of violence against trade unionists.

The Committee is bound to note that the situation of violence against trade unionists, the shortcomings in the operation of the criminal justice system and the situation of impunity have been further aggravated. The high-level mission of February 2009 noted that in recent years, despite the higher level of violence committed against trade unionists (according to information from Government officials), there have not been effective prosecutions or convictions. The high-level mission received testimony of the general lack of independence of the judicial authorities and Government bodies in relation to criminal cases. The Government indicated to the high-level mission that the situation of violence was generalized and denied the existence of a state policy against the trade union movement.

The Committee notes that the high-level mission of February 2009 determined that a significant increase is required in the capacity and budget of the Office of the Public Prosecutor of the Nation, with a view to increasing the number of prosecutors and investigators. The mission proposed that additional resources should be allocated to existing programmes for the protection of trade unionists (there are currently 44 trade unionists benefiting from protection measures) and witnesses, and that these programmes should be appropriately coordinated. The high-level mission considered that measures need to be taken to actively combat any stigmatization of trade unions and the trade union movement implied by the association of trade union activities with criminal acts. The high-level mission indicates that the trade union membership rate and the number of collective agreements is very low.

The Committee notes the Road Map formulated by the Government after holding consultations in the National Tripartite Commission, in which it was emphasized that consensus was not reached between workers’ and employers’ organizations. The Road Map and the Government’s introduction are summarized below:

Introduction and background

In June 2009, when the 98th Session of the International Labour Conference was held, the Ministry of Labour and Social Insurance (MTPS) of Guatemala undertook to prepare a road map to address the observations of the Committee of Experts on the Application of Conventions and Recommendations of the ILO.

On 2 July 2009, the MTPS requested technical assistance from the ILO for the preparation of a time-bound road map for the adoption of the necessary measures to achieve effective compliance with ILO Convention No. 87 in Guatemala.

In a response to this request, the first outline of the road map was received from the International Labour Standards Department of the ILO, which was submitted for consideration by the Tripartite Commission on International Labour Affairs in Guatemala in the context of five meetings. It was only examined in three sessions, without the road map being formulated and approved because, although the representatives of workers and employers expressed their viewpoints, they did not reach consensus. They were also convened to a meeting on 19 November at which the sole item on the agenda was the road map.

In view of this situation, the High Office of the Ministry of Labour and Social Insurance of Guatemala took the decision to formulate the road map through which the State of Guatemala undertakes to implement the activities set out therein.

Strategic Objective I: Provide an effective response to all the cases submitted to the ILO Committee on Freedom of Association

The State of Guatemala, in the same way as many countries in the region, has historically been singled out on many occasions concerning the violation of the right to organize and freedom of association, which are protected by ILO Conventions Nos 87 and 98.

In view of this situation, the current Government of the Republic of Guatemala considers it a priority to address the observations, recommendations and complaints relating to freedom of association which have been referred to the ILO supervisory bodies, particularly those relating to the legal status of persons who due to the exercise of their right to organize are subject to persecution, violence or intimidation.

We are aware of the need for greater attention to be paid to the follow-up investigation and conclusion of cases of violence against trade unionists, and we therefore consider it necessary to begin with affirmative action involving an effective and periodic report to the Committee on Freedom of Association (CFA), including measures of inter-institutional coordination with a view to the exchange of pertinent and relevant information, thereby ensuring that it is brought to the knowledge of the ILO supervisory bodies.

Accordingly, we propose the strengthening of the prosecution unit of the Directorate of International Affairs, through the assignment of qualified personnel devoted exclusively to this subject, with the necessary resources to carry out their activities and provide an immediate response to the specific situation of each of the cases under investigation.

It is also our wish to formulate an annual schedule of meetings between the Ministry of Labour (International Labour Affairs Unit) and the Office of the Attorney-General, with a view to establishing a permanent framework for action between the two institutions.

The Directorate of International Labour Affairs will also undertake an assessment of the cases which have been concluded to bring them to the knowledge of the CFA, as well as of specific cases of violence against trade unionists, with a view to the establishment of a mechanism for their appropriate follow up in the relevant procedural bodies and to provide relevant and regular responses to the CFA of the ILO.

Strategic Objective II: Strengthening inter-institutional coordination machinery

Based on experience, we consider it necessary to maintain constant and permanent communication in a flexible and effective manner with Government institutions that are closely involved in labour matters. For this purpose, the Multi-institutional Labour Commission for Labour Matters in Guatemala is being reactivated and a list will be drawn up of the bodies which are not yet included in the above Commission, but which are closely related to the subject matter.

Through this new system, the intention is to improve coordination between this Ministry and the related Government institutions, as a basis for addressing labour disputes appropriately and the strengthening of industrial relations in the country.

By way of illustration, it should be noted that recent separate meetings have been held with the Advocate-General of the Nation, the Public Prosecutor and the Attorney-General, the President of the Supreme Court of Justice, accompanied by the four magistrates of the Chamber for the Protection of Constitutional Rights, whose remit includes labour courts, and a magistrate from the Civil Chamber, officials who on 13 October 2009 took office for a period of five years and the Minister of Government. All of these officials were informed of the intention to address the observations, recommendations and complaints submitted against the State of Guatemala in labour matters, and they offered full cooperation.

Strategic Objective III: Addressing the recommendations of the CEACR for legislative reforms

A Lawyers’ Commission of the MTPS has been appointed with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of the Lawyers’ Commission was communicated to the former ILO technical assistance mission.

We have in our possession a list of legislative initiatives proposing the adoption of reforms to Decree No. 1441 of the Congress of the Republic and the Labour Code, which are currently being examined by the Congress of the Republic. This shows the political will of the State of Guatemala to resolve gradually the problems deriving from the application of Guatemalan labour law.

In addition to the above, an analysis has also been undertaken of the manner in which the Penal Code penalizes the right to strike of workers and, taking into account the CEACR’s recommendations, there is now a study to be submitted to the state bodies for decision.

The strategy that will be applied to achieve the expected objectives has also been planned.

Attached is a matrix containing the Road Map to address the observations and recommendations of the ILO supervisory bodies with regard to Conventions Nos 87 and 98 on the right to organize, freedom of association and collective bargaining.

The Committee observes that the measures outlined in the Road Map are either to be implemented on a constant basis or are subject to time limits, which mainly expire on 31 December 2009, or before that date, except for the submission of draft legal reforms to the state bodies (the time limit for which is set at 28 February 2010) and certain aspects of the measures for the coordination of state bodies in relation to combating violence.

The mission which provided assistance for the formulation of the Road Map emphasizes in its report with regard to the issue of anti-trade union violence: (1) the commitment of the Office of the Attorney-General to reinforce measures for the investigation of the complaints received, and in general of any complaint relating to punishable offences against trade unions, and to submit regularly to the Ministry of Labour and Social Insurance the available information concerning such complaints, so that it is able to reply to the supervisory bodies and particularly the Committee on Freedom of Association; the public prosecution service indicates difficulties relating to the lack of cooperation of those lodging complaints; (2) the offer of cooperation from the Ministry of Government, both for the protection of persons under threat and in support of the action of the labour inspectorate; (3) the offer of cooperation of the new magistrates in the Supreme Court of Justice to alleviate the expenditure and efforts of the Ministry (inspectors) particularly in procedures to penalize offences; (4) the new meeting of the Multi-institutional Commission established by the Ministry to strengthen the links between the officials represented on the Commission. The meeting was attended by the new magistrate in the Supreme Court of Justice who is responsible for labour matters, the training of judges and the modernization of labour procedures; and (5) the prosecutors provided the following figures for cases concerning crimes against trade unionists: 31 in 2007, 32 in 2008 and 48 in 2009. The Ministry of Government indicated that a series of trade unionists are currently receiving personal or zoned police protection and indicated its readiness to provide support through the police for action by inspectors, when so requested.

With regard to the problem of impunity, the report of the mission indicates that the problem of impunity in Guatemala is seen as a worrying national problem that is more practical than legislative in its nature. The press frequently reports murders, particularly of bus drivers, without those who committed them being arrested and brought to trial. This is due, on the one hand, to the precarious nature of the system of investigation and, on the other, the situation of the judiciary. The International Commission against Impunity in Guatemala (CICIG) indicated in its report that “Currently in Guatemala the conditions do not favour the existence of independent and impartial judges”. Nevertheless, steps have recently been taken which could be significant: (a) the resignation of the Prosecutor-General of the Republic and the Attorney-General, at the request of the President of the Republic, and the appointment of a new Prosecutor-General and Attorney-General, who is a career official in the public prosecution service, on 30 July 2009, after first consulting the CICIG; and (b) the renewal of the magistrates of the Supreme Court of Justice on 13 October 2009, following a rigorous selection process, on which, among other bodies, views were expressed by the Commissioner of the International Commission against Impunity in Guatemala (CICIG).

The Committee requests the Government to: (1) ensure the protection of trade unionists who are under threat of death; (2) convey to the public prosecutors and the Supreme Court of Justice its deep concern at the slowness and ill-effectiveness of the judicial system and its recommendation concerning the need to elucidate murders and crimes committed against trade unionists with a view to penalizing those responsible; (3) allocate sufficient resources for these objectives, and consequently increase human and material resources, ensure coordination between the various state bodies who may be called upon to intervene in the judicial system and train investigators; and (4) give priority to these matters in Government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the grave problem of criminal impunity with regard to crimes against trade unionists.

The Committee requests the Government to provide regular information on the attainment of the objectives of the Road Map and the administrative, judicial and legal reforms set out therein. The Committee trusts that the objectives and measures envisaged in the Road Map will result within a reasonable period of time in crucial improvements with regard to the serious problems raised.

Finally, the Committee once again expresses its deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be  exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the necessary investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and punished in accordance with the law. The Committee requests the Government to keep it informed of any developments in this respect. The Committee nevertheless expresses its concern that the information provided by the Government only exceptionally reports cases in which those responsible have been identified and punished, and emphasizes the need to considerably reinforce the criminal justice system.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code) and delays in the registration of trade unions or the refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      the Civil Service Bill; in its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and

–      the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or other employment benefits, other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this principle in case law has not been given effect in national practice according to technical assistance reports.

With regard to these matters, the Committee notes that, at the proposal of the 2008 high-level mission, the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98. This agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.), and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee has received the report of the first technical assistance mission (November 2008) and of a second technical assistance mission (January 2009), following up the high-level mission (April 2008), and of a technical assistance mission carried out in November 2009 to prepare the Road Map of measures to give effect to the Convention called for by the Conference Committee on the Application of Standards. It observes that the Road Map includes deadlines for the submission of draft legislation covering the legislative reforms requested by the Committee of Experts. It recalls in this respect that a series of proposals to address the legislative problems raised were prepared by the National Tripartite Commission along with the ILO technical assistance missions in the first quarter of 2009.

The Committee requests the Government to provide information on this matter and hopes to be able to note progress in the near future. The Committee firmly hopes that with the technical assistance that it is receiving, the Government will be able to provide information in its next report offering a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector (maquilas). For many years, the Committee has been noting the comments made by trade union organizations on significant problems of application of the Convention in relation to trade union rights in export processing zones (maquilas). In its 2008 observation, the Committee noted the Government’s indications that: (1) the General Labour Inspectorate of the Ministry of Labour and Social Insurance was addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector were closed and ten were closed in 2008; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsman; (4) there are ten trade unions in the sector, with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is relying upon technical support from the ILO.

The Committee notes that the Government confines itself in its report to indicating that, during the last half of 2008 and up to now (December 2009) 61 trade unions have been registered, together with 29 collective accords, but that it does not provide information on training activities in the field of trade union rights.

The Committee notes the recent comments of the ITUC according to which it is impossible to exercise the right to organize in export processing zones in view of the determined opposition of the employers. Only three unions have been established in the 200 export processing zones that exist, and the labour authorities are incapable of exercising control over the failure to comply with and the violations of the legislation in this sector.

The MSICG considers that the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee notes that, in its conclusions, the high-level mission of 2008 indicated that: “according to the Ministry of Labour and Social Insurance, there are seven collective accords in the export processing sector, but only two of them date from 2007. The remainder date from 2003 and before. With regard to trade union membership, according to the administrative authorities, there are six unions with 562 members in export processing zones, in a context of around 200,000 workers. In the view of the executive committee of the trade union movement, there are only two unions in this sector. Whatever the correct figure, there is clearly only a minimum level of trade union activity and collective bargaining in the export processing sector, thereby constituting a problem in the application of Conventions Nos 87 and 98”. The Committee requests the Government to provide information on the exercise of trade union rights in practice in export processing zones (number of trade unions, number of Worker members, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions adopted by the authorities and the number of inspections).

Under these conditions, the Committee hopes that the Government will continue benefiting from technical assistance from the Office, so that the Convention is given full effect in the export processing sector, and that it will continue providing information on this matter. The Committee requests the Government to refer to the National Tripartite Commission problems which arise in relation to the exercise of trade union rights in the export processing sector and to provide information on any developments.

National Tripartite Commission. The Committee has received the reports on the work of the National Tripartite Commission between August 2008 and July 2009. The Committee notes that, according to technical assistance reports, this Commission is a valuable tool, although there are currently problems relating to the recognition by all concerned of the workers’ representatives due to a division in UNSITRAGUA. Assistance needs to be provided to the Tripartite Commission for the preparation of the documents to be discussed and the management of meetings to facilitate the adoption of decisions or firm conclusions. The Committee endorses the opinion expressed in the technical assistance report and invites the Government to request technical assistance on this matter, as well as for the works of the Legal Reform Subcommittee, which has prepared the documents setting out the reforms requested by the Committee of Experts, and the functioning of the mechanisms for rapid intervention in cases of violations of trade union rights. The Committee requests the Government to continue providing information on the work of the National Tripartite Commission on International Labour Affairs, and that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee expresses the firm hope that in the near future it will be able to note that significant progress has been made in the application of the Convention.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, the discussion which took place in the Conference Committee on the Application of Standards in 2008 and the various cases currently before the Committee on Freedom of Association (some of which relate to serious allegations of violence against trade union leaders and trade unionists). The Committee also notes the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission designed to improve the application of the Convention.

The Committee also notes the detailed comments on the application of the Convention made by the Union Movement, Guatemalan Indigenous and Agricultural Workers for the Defence of Workers’ Rights in a communication dated 31 August 2008, as well as the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which refer to matters already raised by the Committee, as well as to serious acts of violence against trade union leaders and trade unionists, impediments to the registration of trade union organizations, difficulties in exercising the right of assembly of trade union organizations and other violations of the Convention. In this regard, the Committee hopes that, in the context of the tripartite agreement concluded during the high-level mission, all the questions raised, as well as the comments made by the ITUC in 2005 and by the Trade Union Confederation of Guatemala (UNSITRAGUA) in 2006, will be examined and tackled in a tripartite manner by the Government and the social partners in the context of the work of the Tripartite Committee on International Affairs, the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence against trade unionists

The Committee recalls that for several years, it has noted in its observations acts of violence against trade unionists and has previously requested the Government to provide information on developments in this regard. The Committee notes that the Government indicates in its report that: (1) it shares the Committee’s concern with regard to the acts of violence which, in its view, affect not only people involved in trade union activities, but also society in general; (2) it hopes that, in the medium term, it will be possible to reduce the crime rate through the development of strategies to strengthen civil intelligence systems, so that the perpetrators of crimes can be identified, tried and convicted; (3) a new Attorney-General and Head of the Office of the Public Prosecutor has recently taken up office and the Tripartite Committee on International Affairs has called on him to deal with the issue of acts of violence against trade unionists and the need to track down, prosecute and convict the perpetrators of these acts; and (4) the intention of the members of the Tripartite Committee is to achieve closely coordinated links with the Office of the Public Prosecutor in order to facilitate the provision of effective security measures for those members of the trade union movement who are the victims of intimidation or threats.

The Committee notes the conclusions of the high-level mission, in particular, with reference to the issue of human rights in trade union circles, that: “the mission noted greater attention to this problem, which is reflected in the decision of the Office of the Public Prosecutor under the instruction of the Attorney-General to allocate greater budgetary resources to the Special Office for Offences against Journalists and Trade Unionists and to assign four new investigators to that area. Moreover, the progress that had been made in the investigation into the assassination of the Secretary-General of the Trade Union of Workers of Puerto Quetzal, Mr Pedro Zamora, in January 2007, which prompted a special ILO mission and action taken by the mission in March–April 2007. The investigations carried out have established that two individuals have been accused of the crime and a warrant for their arrest has been issued. It is also worth pointing out that, following an investigation, it was confirmed that the trade unionist Mr López Estrada, thought to have disappeared, was found safe and sound at his mother’s house in Puerto Barrios”.

Furthermore, the Committee notes that, at the proposal of the mission, the Tripartite Committee approved an agreement to eradicate violence, which provides for the carrying out of: “(1) an evaluation of institutional action, including the most recent, and particularly the special protection measures to prevent acts of violence against trade unionists under threat; and (2) an evaluation of the measures that are being taken (increases in budget allocations and in the number of investigators) to guarantee effective investigation with sufficient resources to permit the elucidation of the crimes against trade unionists and the identification of those responsible”.

In this respect, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and penalized in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code); delays in the registration of trade unions or refusal to register them. In this regard, the Committee notes that the Government indicates that: (1) the new Ministry of Labour authorities have initiated a process to significantly reduce the time required for the administrative processing of trade union authorizations; (2) the Directorate General of Labour had authorized 40 new trade unions as at August 2008; and (3) the speed with which pending applications for registration will be processed is dependent on how quickly the comments made by the technical bodies of the Ministry of Labour and Social Insurance to the representatives of the trade unions in the process of being established are taken into account;

–      restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes that the Government reports that the Bill has been withdrawn from discussion, since an inter-sectoral consultation committee was set up in July 2008 to come up with a Bill that is consistent with the needs of the sectors involved;

–      Situation of many workers in the public sector who do not benefit from trade union rights. These workers (who are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. The Committee notes that the members of the Supreme Court of Justice stated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize.

With regard to the matters above, the Committee notes that, at the proposal of the high-level mission, the Tripartite Committee approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, and that this agreement provides for “an examination of the dysfunctions of the current system of labour relations (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members as laid down in Conventions Nos 87 and 98 in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations”. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee takes note of the report of the first mission of the technical assistance (November 2008), which was a follow-up to the high-level mission (April 2008).

The Committee firmly hopes that with the technical assistance the Government is receiving, the Government will be able to provide information in its next report on a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector. In its previous observation, the Committee noted the comments made by trade union organizations referring to significant problems relating to trade union rights in export processing zones and requested the Government to take the necessary measures to give full effect to the Convention in export processing zones. The Committee notes that the Government reports that: (1) through its general labour inspectorate, the Ministry of Labour and Social Insurance has been addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Inspectorate’s Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector closed and in 2008, ten closed; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsperson; (4) there are ten trade unions in the sector with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is counting on technical support from the ILO.

In this regard, the Committee notes that, in its conclusions, the high-level mission points out the following on this matter: “… it is in this area, as well as in the area described in the previous paragraph, that we see the extent to which the problems identified during the 2007 mission persist. According to the Ministry of Labour and Social Insurance, there are seven collective agreements for the export processing sector, but only two of those are from 2007. The others date back to 2003 or earlier. With regard to trade union membership, according to the administrative authority, there are six trade unions with a total membership of 562 workers in the export processing sector, among almost 200,000 workers, but according to the executive board of the trade union movement, there are only two trade unions in this sector. Regardless of whichever information is accurate, what is certain is that there continues to be minimal trade union activity and collective bargaining in the export processing sector and problems in applying Conventions Nos 87 and 98”.

Under these circumstances, the Committee hopes that the Government will continue benefiting from technical assistance from the Office so that the Convention is given full effect in the export processing sector, and will continue providing information on this matter.

Tripartite national committee. In its previous observation, the Committee asked the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as the work of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee notes that the Government reports that: (1) it is satisfied with the development of the meetings of the Tripartite Committee, particularly with the effectiveness of the dialogue and the openness to analysis, discussion and recommendations arising from the meetings; (2) by August 2008, ten meetings had been held, in which subjects of relevance to employer-worker relations were discussed; (3) the impetus of the Tripartite Committee’s activities has absorbed functions covered by the Legal Reform Subcommittee and an analysis is currently being carried out in order to filter and prioritize the cases to be dealt with; (4) in the context of the mechanism for rapid intervention in cases, both the worker and the employer sectors of the Tripartite Committee have reported cases and, given the constant participation of the general labour inspector, those cases have been dealt with and results achieved, both in the agricultural sector and in the garment or export processing sector; and (5) in addition, the Deputy Minister of Labour has intervened directly in the cases brought to the attention of the Tripartite Committee, appearing in person in the places in which a dispute has arisen and mediating in order to find an appropriate solution to those cases. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Finally, the Committee observes that, in the context of the session of the International Labour Conference held in 2008, during the analysis of the application of the Convention by Guatemala, the Committee on the Application of Standards invited the Government to accept a mission made up of the Employer and Worker spokespersons to assist the Government in finding durable solutions to all of the above matters. The Committee notes with interest that the Government indicates in its report that it welcomes the invitation along with each and every mission which wishes, in good faith, to assist in overcoming the complex situations relating to freedom of association.

The Committee hopes that it will be able to note in the near future that significant progress has been made in the application of the Convention.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and its reply to the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation), of 31 August 2005, and the Trade Union Confederation of Guatemala (UNSITRAGUA) of 26 August 2006. The Committee also notes the comments made by the ITUC, dated 28 August 2007, which refer to legislative matters and issues relating to the application of the Convention in practice which have already been raised by the Committee and, particularly, threats and harassment against a trade union leader, the attempted murder of a leader of the teaching sector and the kidnapping for two hours of a trade union leader. The Committee requests the Government to provide its comments in this respect.

The Committee also notes the comments made by the Guatemalan Trade Union Movement, which groups together many trade union organizations (CTC, CGTG, CUSG, CNOC, CNSP, FENASTEG, FESEBS, FESTRAS, FESOC, FNL, SITRADOCSA, SITRADEORSA, SITRAPDEORSA and UNSITRAGUA), dated 27 August 2007. The Committee further notes the various cases that are being examined by the Committee on Freedom of Association, some of which relate to serious allegations concerning the murder of a trade union leader. The Committee also notes the conclusions of the technical assistance mission which visited the country from 26 to 28 February 2007.

Acts of violence against trade unionists

The Committee recalls that in previous observations it noted acts of violence against trade unionists and requested the Government to provide information on developments in this respect. The Committee notes that the Government provides information supplied by the Office of the Special Investigator into crimes against journalists and trade unionists of the Office of the Public Prosecutor concerning complaints relating to acts of violence against trade unionists. In accordance with this information, seven complaints were made in 2007, compared with 37 in 2006 and 43 in 2005. In addition, two rulings have been handed down, one in 2004 and another in 2006, with one person convicted in each case. There have also been cases of settlements through conciliation and 13 cases prepared and awaiting examination by the courts. In this respect, the Committee notes the conclusions of the technical assistance mission which emphasized the existence of situations of anti-union violence against trade unionists, including death threats, acts of intimidation and even the murder of a trade union leader in 2007. According to the information received by the mission, 17 trade unionists are benefiting from official security measures. In this respect, the mission welcomed the fact that, at its request, the Government provided protection measures for the Secretary-General of the Union of Workers of the Quetzal Port Enterprise, and the headquarters of the union. The Committee notes that the Office of the Public Prosecutor provided information to the mission on the situation with regard to complaints and criminal proceedings relating to crimes against trade unionists. The Committee notes that, in its conclusions, the mission indicated that the complaints made only lead in very few cases to the identification and punishment of those responsible. In this respect, while noting certain protection measures for trade unionists, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members, and in particular deeply regrets the murder of a trade union leader in 2007. It recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will take the necessary measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also asks the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence, prosecuting and penalizing them in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–           restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them. In this respect, the Committee notes the indication by the technical assistance mission in its conclusions that “the legislation in force raises obstacles to the adequate development of trade unionism, starting with the impossibility in practice to establish industry unions, in view of the requirement in law for such organizations only to be accepted when their founders demonstrate that they represent 50 per cent plus one of the workers in the sector, which is clearly impossible to achieve”. The mission also referred to the lack of detailed statistics on trade unions and higher-level organizations;

–           restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–           restrictions on the free financial administration of trade union organizations under the Basic Act on supervision by the tax administration, which in particular allows inspections without prior notice. In this respect, the Committee notes that the technical assistance mission indicated in its conclusions that over the past eight years only one inspection of trade union accounts has been carried out and that financial investigations are exclusively based on disparities detected through information technology;

–           restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86). The Committee notes the emphasis placed by the technical assistance mission on the fact that there have not been any legal strikes since the 1970s. Indeed, according to the mission, “the problem lies in the excessive judicial basis of labour relations law, which in other countries is a matter for the labour administration and not the judiciary. Rulings by judges tend to hold sway when collective solutions are being sought and there is an absence of typical trade union action. It noted accordingly that the last lawful strike was held in 1975 and that for over ten years there has not been any type of strike”.

With reference to these matters, the Committee notes the Government’s indication that the technical assistance mission was extremely useful. The Government reports that following the mission tripartite meetings were held in the Tripartite Legal Reform Subcommittee, the pending issues were reviewed and a priority was established among the issues. A number of meetings have been held and the proposals made by the Committee have been reviewed, some of which had already achieved consensus in 2001. These issues include the amendment of section 390 of the Penal Code. The Government requests continued technical assistance in this respect.

In general terms, the Committee notes that the technical assistance mission also found that “the basis of the Guatemalan problem in the field of freedom of association and collective bargaining lies in the existence of a labour law system which, in both substantive and procedural terms, prevents and raises obstacles to the appropriate development of trade union activity and accordingly to collective bargaining and, as indicated by the ILO supervisory bodies, is in objective violation of Conventions Nos 87 and 98. Without the reform of the system, it is very difficult to propose an appropriate solution, particularly since both the social partners and the Government are imbued with a culture that follows very closely procedures arising out of this legal system”. The Committee observes with concern that the serious problems on which it has been commenting for many years continue to persist and that, despite the tripartite discussion at the national level and the technical assistance provided on various occasions, there has not been significant progress. The Committee considers that a reform of existing legislation is needed in order for the guarantees expressed in the Convention. The Committee strongly hopes that the new Government, with the assistance of the mission which will be held at the end of April in 2008, will show the political will to resolve these issues. The Committee requests the Government to provide information in its next report on any positive developments in relation to the various issues raised.

Other matters

Export processing sector. The Committee previously requested the Government to provide information on any complaints relating to violations of trade union rights in the export processing sector over the past two years, and on their outcome. In this respect, the Committee notes that the Government attaches information provided by the General Directorate of Labour according to which there are seven active trade union organizations. The Government also forwards information supplied by the general labour inspectorate relating to complaints of violations of Conventions Nos 87 and 98 between July 2006 and June 2007, of which one in 2006 related to the export processing sector. In 2007, there have not been complaints relating to the export processing sector. The Government indicates that since the establishment of the Export Processing Inspection Unit in 2003, the latter is responsible for addressing all types of complaints and labour disputes in the sector. Two workshops have been held and it is coordinating with the CGTG the organization of workshops addressing the subject of trade union rights. The Committee notes the Government’s indication that technical and financial assistance has been requested from the ILO Subregional Office in San José in Costa Rica to hold monthly tripartite seminars on freedom of association and collective bargaining in the export processing industry. The Committee welcomes this initiative and hopes that the necessary technical assistance will be provided. In this regard, noting that in their latest communication the trade union organizations refer to significant problems relating to trade union rights, the Committee requests the Government to take the necessary measures to give full effect to the Convention in export processing zones and to continue providing information in this respect.

Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National State Union Workers’ Federation (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee requested the Government to keep it informed of legislative developments in this respect. In this connection, the Committee notes the Government’s indication that the legislative initiative proposing amendments to the Civil Service Act was the subject of broad consultation and has received one favourable and another unfavourable opinion in the various commissions of the Congress of the Republic. The Government indicates that it requested technical assistance from the Office to assess and make the necessary recommendations and proposals on the compatibility of this legislative initiative with Conventions Nos 87 and 98. The Committee expresses the firm hope that, with the contribution of the requested technical assistance, the Civil Service Bill will be in full conformity with the provisions of the Convention. It requests the Government to keep it informed on this subject.

Situation of many workers in the public sector who do not benefit from trade union rights. The Committee notes that, according to the technical assistance mission, there are a high number of workers classified as temporary, daily or occasional and that these classifications are not set out in the law, but in the General State Budget, as indicated in the Manual of Budget Classifications for the public sector in Guatemala. These workers (they are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. In this connection, the Committee recalls that, in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, shall have the right to establish and to join organizations of their own choosing. In this respect, the Committee requests the Government to take the necessary measures to ensure that all workers in the public sector, including those engaged under item 029 of the general state budget, benefit from the rights and guarantees set out in the Convention. The Committee requests the Government to keep it informed on this subject.

Tripartite National Committee. Finally, the Committee previously requested the Government to examine in the Tripartite National Committee the issues raised by UNSITRAGUA in 2005. In this regard, the Committee notes the Government’s indication that, due to the new composition of the Tripartite Committee on International Labour Affairs and the failure to appoint one of its members, it has not been possible to make progress in the work assigned to the tripartite subcommittees and councils. The pending issues raised by UNSITRAGUA will be examined in the context of the Legal Reform Subcommittee, which has just started to meet again; the pending agenda will be reviewed and it has been agreed on a tripartite basis that this issue will be re‑examined by the Tripartite Committee on International Labour Affairs. The Government is awaiting the communication from UNSITRAGUA to update the list of pending cases. It is also hoped to address the cases raised by UNSITRAGUA, in relation to which the Committee on Freedom of Association has recommended that investigations be undertaken, in the context of the Tripartite Committee. In this connection, the Committee notes that, according to the technical assistance mission, the Tripartite Committee requires technical assistance to improve its operation. The mission noted that the Tripartite Committee plays a valuable role in social dialogue and in slowing down undesirable legislative initiatives and draft texts, as well as in examining and resolving collective disputes, but that it does not succeed in putting forward joint proposals in relation to most of the pending problems. The Committee also notes the appreciation expressed by the mission that the Government (and the Labour Commission of the Congress) have requested additional technical assistance from the ILO to overcome the pending problems. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Labour Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee invites the Government to take the necessary measures in order to ensure that the issues raised by the Guatemalan Trade Union Movement in its communication of 27 August 2007 are also examined by the Tripartite Committee.

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

The Committee notes the Government’s reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) of 31 August 2005, and the Trade Union Confederation of Guatemala (UNSITRAGUA), of 26 August 2006, relating to matters concerning the legislation and the application of the Convention in practice that are already under examination by the Committee, as well as acts of violence, including murder, death threats and the circulation of blacklists of trade union representatives, the persecution of workers because of the establishment of a trade union, the subcontracting of workers with a view to undermining the union in a banking establishment, and threats and acts of violence against the judicial labour authorities, resulting in a situation of grave impunity and the denial of the right to strike. The Committee observes that these allegations are being examined in the context of Cases Nos. 2017 and 2050, 2241, 2259, 2341 and 2413, which are currently before the Committee on Freedom of Association.

In its previous observation, the Committee noted the comments made by UNSITRAGUA and the National State Union Workers’ Federation (FENASTEG) indicating that the Civil Service Bill establishes a percentage that is too high for the establishment of trade unions and restricts the right to strike. In this respect, the Committee notes the Government’s indication that the Bill is the subject of consultations with trade union organizations, that it was submitted to the Tripartite Committee on International Labour Affairs and that Congress has met federations and confederations to discuss the matter. The Committee hopes that the Bill that emerges from the process of consultation will be in full conformity with the provisions of the Convention and it requests the Government to keep it informed of the respective legislative developments. The Committee reminds the Government that the technical assistance of the Office is at its disposal.

Finally, the Committee requests the Government, in accordance with the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in June 2005 and the various cases currently before the Committee on Freedom of Association.

The Committee notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA) and the National State Union Workers’ Federation (FENASTEG). The Committee notes that UNSITRAGUA’s comments refer to the Government’s statements in its report of 2004 (for example, concerning the functions of the labour inspectorate, the declaration of strikes as being unlawful, the establishment of trade unions in export processing industries (maquila), procedures for the registration of trade union organizations, etc.) and that it also refers to acts of interference by the Government in trade union affairs on a ranch and in a sugar processing plant. The Committee suggests that the general matters raised by UNSITRAGUA could be examined in the National Tripartite Committee and that the specific acts of interference by the Government in trade union affairs could be examined in the framework of the rapid intervention mechanism to examine complaints concerning violations of trade union rights, established following the direct contacts mission in 2004 and which, according to the Government, has begun to be operational. The Committee therefore requests that the Government and UNSITRAGUA examine these matters in the above bodies.

With regard to the comments by UNSITRAGUA and FENASTEG criticizing a Civil Service Bill (the trade union organizations indicate that, among other violations of labour rights, the percentage required to establish trade unions is too high, restrictions are placed on the exercise of the right to strike, etc.), the Committee notes the Government’s indication that the Bill is still at the consultation stage and it will be discussed with various institutions, including trade union organizations. Under these conditions, the Committee hopes that the Bill which emerges from the consultation process will be in full conformity with the provisions of the Convention and asks the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.

The Committee also notes the comments on the application of the Convention made by the World Confederation of Labour (WCL), referring to matters already raised by the Committee.

1.        Acts of violence against trade unionists

The Committee notes the Government’s comments on this subject, and particularly that: (1) it recognizes that there is an institutional weakness relating to the investigation of any crime committed in Guatemala and that, although acts of violence have clearly decreased considerably, it is evidently disturbing that the investigations have not been completed, for which reason the Government is making efforts to ensure that the Office of the Public Prosecutor completes the investigations; (2) it is considered important to discuss a mechanism to protect trade unionists, as recommended by the direct contacts mission in 2004, but it has to be emphasized that everyone requires protection, and particularly those working to enforce justice, and as the process of adapting the programme that is to be implemented for the latter is nearing completion, the programme for the protection of trade unionists is now being given priority; and (3) following the complaints made by workers’ representatives in the Tripartite Committee on International Labour Affairs, the competent bodies have been directed to investigate them and to provide protection to the persons under threat.

The Committee expresses deep concern at the acts of violence against trade union leaders and members which, according to the Government, continue to be reported. The Committee emphasizes that trade union rights can only be exercised in a climate that is free of violence and expresses the sincere hope that the protection mechanism for trade unionists will become operational in the near future. It also requests that the Government provide information in its next report on any developments in this respect. The Committee trusts that the Government will make every effort to ensure full respect for the human rights of trade unionists.

2.        Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which in particular allows inspections without prior notice;

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of the voters, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86).

The Committee notes the Government’s indication that the representatives of employers and workers are analysing all the legal reforms with a view to resolving: the problems arising in relation to the reform initiatives of 2003; the shortcomings in the penal legislation which are in violation of freedom of association; all the aspects of Conventions Nos. 87 and 98; the provisions setting out the requirements to hold office on trade union executive committees; the substantive and procedural reforms, the legal criteria to establish the majority of votes required to call a strike and clarification of the legal definition of essential services in relation to the exercise of the right to strike.

The Committee also notes the Government’s indication in this respect that: (1) due to the importance of submitting a proposed reform of the Labour Code, meetings of the Tripartite Committee on International Labour Affairs (CTAIT) are held every week and the reform is the only item on the agenda; (2) meetings have been held between the CTAIT and the Labour Commission of the Congress, in which the importance has been acknowledged of making reform proposals which are supported by tripartite consensus, for which purpose joint work is being carried out; and (3) many subjects on which the Committee of Experts suggested legislative changes are problems of interpretation because the constitutional principle is applicable that, in the event of conflicts of labour law, the most favourable provision for workers prevails, as a result of which many of the problems raised have already been resolved as subsequent legislation, irrespective of its source or hierarchical rank, has superseded the legal provisions identified as being problematic by the Committee (the Government indicates that this is the case of Government Agreement No. 700-2003 respecting essential public services in which compulsory arbitration can be imposed, on which the Committee had commented).

Under these conditions, noting that the Government and the social partners have embarked upon a process of analysis with a view to carrying out the required amendments of the legislation to bring it into conformity with the Convention, the Committee hopes that the necessary legislative reforms will be undertaken in the near future and that, in order to avoid any possible ambiguity, those provisions which have been superseded by subsequent laws will also be repealed. The Committee requests the Government to provide information in its next report on any developments in this respect.

3.        Other matters

In its previous observation, with reference to the exercise of trade union rights in the export processing industry, the Committee requested the Government to provide information on any complaint relating to the exercise of trade union rights in this sector, the corresponding administrative or judicial decisions and the manner in which compliance with the rights laid down by the Convention is secured in that sector. The Committee notes from the Government’s report that: (1) with reference to the various investigations that have been commenced, when the general labour inspectorate has made comments, employers have guaranteed compliance with the minimum rights of workers and in some cases of failure to comply with labour provisions administrative action has been taken to impose a penalty on the employer for breach of labour law; (2) at the present time, following a ruling by the Constitutional Court, inspectors are not empowered to adopt administrative measures or to impose fines, for which reason complaints are made to labour tribunals so that they can impose penalties for violations of labour laws; (3) in the context of monitoring and inspection to enforce compliance with labour laws, labour inspectors have taken action and have warned employers to comply with certain legal requirements, following complaints; and (4) cooperation and support has been requested from the ILO Office in San José in Costa Rica for the holding of the first national seminar on labour rights and freedom of association in export processing industries, which is due to be held soon. Under these conditions, while recalling that the Government gave assurances to the direct contacts mission in 2004 that the tripartite seminar on the general issue of compliance with trade union rights in export processing industries would envisage a plan of action to be evaluated as part of the follow-up activities, the Committee requests the Government to continue making efforts to ensure compliance in this sector with the rights set forth in the Convention. The Committee also asks the Government to provide information in its next report on any complaints made in export processing industries of violations of trade union rights over the past two years, and their outcome.

Finally, the Committee notes that UNSITRAGUA and the International Confederation of Free Trade Unions (ICFTU) recently sent comments on the application of the Convention. The Committee requests that the Government provide its observations thereon.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report, the report of the direct contact mission which took place in Guatemala from 17-20 May 2004, the discussion which took place in the Conference Committee in June 2004 and the comments on the application of the Convention submitted by the following organizations: Trade Union of Workers of Guatemala (UNSITRAGUA), the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Government’s reply to many of these comments. The Committee invites the Government to examine in the National Tripartite Committee the issues raised by UNSITRAGUA, many of which have been submitted to the Committee on Freedom of Association or refer to problems of interpretation relating to legislation or jurisprudence. The Committee requests the Government to keep it informed in this regard.

The Committee welcomes the fact that the Government has extended the mandate of the direct contact mission in the context of Convention No. 98 to the issues raised in the context of the application of Convention No. 87.

The Committee notes the Government’s statements in its detailed report. The Committee notes that: (1) the labour inspectorate has duties within the new system of sanctions and precise instructions have been issued to inspectors for the effective safeguarding of trade union rights; it has also dealt with all complaints received, resolving them through conciliation or applying the corresponding sanction; (2) the Government indicates that the "pro operario" principle is contained in the Constitution and allows the interpretation of certain matters raised by the Committee of Experts since that principle allows the most favourable standard to prevail; (3) in the last three years, with regard to a wave of strikes, there has been a declaration of illegality and a declaration of legality; the latter is partly due to the reluctance of civil society to use institutional means for resolving labour disputes; (4) in May 2003, a national trade union requested technical assistance from the Ministry to ascertain legal aspects concerning industry trade unions; this may result in the formation of the first industry trade union; (5) there are 1,640 registered trade unions, including 389 which are active (56 of these were set up in 2002 and 52 in 2003); two trade unions with 53 members are registered and active in the export processing sector; the total number of members in the country is 24,554; solidarist associations exist in some 550 enterprises and account for 100,000 members; (6) the registration of trade union organizations is carried out within a reasonable time, as far as possible in line with the period laid down in the Labour Code; some delays are the result of omissions by the applicants; the Government will provide information on the average time for the registration of unions; (7) there is no knowledge of the Public Prosecutor’s Office having initiated penal or civil actions against public servants in the case of a strike; and (8) trade union organizations are exempt from paying taxes but they must be entered in the tax register, even though in principle they cannot be subject to taxation.

1. Acts of violence against trade unionists. The Committee notes the information obtained by the direct contacts mission which was supplied by the Special Public Prosecutor’s Office responsible for investigating offences against trade union members. According to this information, during the period 2003-04, one trade unionist was the subject of an attempted murder, another suffered serious injuries, 30 cases involved threats and ten offences involved coercion. The mission report indicates that physical violence has decreased significantly but has not completely disappeared, while the number of cases involving threats and coercion has increased considerably. It should also be emphasized that, according to the information from the Special Public Prosecutor’s Office and the Government, the perpetrators in the murder cases (three cases in 2001 and one attempted murder in June 2002) have been identified but all cases relating to murder and other offences are still at the investigation stage. The Committee expresses its grave concern at this situation and observes that the WCL alleges that criminal proceedings are extremely slow and impunity is the norm in cases concerning trade unionists.

The Committee notes that, among the commitments made by the Government during the mission, the Ministry of Labour undertook, in the case of death threats or aggression towards trade unionists or employers, to arrange with the Ministry of the Interior the necessary personal protection measures for them, if requested by the persons in question.

The Committee emphasizes that trade union rights can only be exercised in an atmosphere which is free of violence and expresses the sincere hope that the Government will make every effort to ensure the full respect of the human rights of trade union members. The Committee requests the Government to provide information on any offences against trade unionists which are reported to the Special Public Prosecutor’s Office.

2. Detention of CGTG trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías. This matter was reported by the World Confederation of Labour (WCL). The Committee notes that the mission visited these leaders in prison and interviews were held with the members of the court responsible for judging Mr. Rigoberto Dueñas for the purpose of stating the conclusions and recommendations of the Committee on Freedom of Association with regard to the detention of this leader (see 334th Report of the Committee, Case No. 2241, paragraphs 524 and 526).

The Committee notes with satisfaction that the abovementioned court acquitted trade union leader Mr. Rigoberto Dueñas in August 2004 and that the other court acquitted Mr. Victoriano Zacarías.

The Committee is grateful to the Ministry of Labour for taking all necessary steps to ensure that the mission could hold interviews with the detained trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías and with the judicial authorities which had competence in these cases.

3. Legislative problems. The legislative provisions which pose problems of conformity with the Convention are as follows:

-  restrictions on the formation of organizations in full freedom (under section 215 (c) of the Labour Code, the need to have "50 per cent plus one" of those working in the enterprise to form industry trade unions), delays in the registration of trade unions or refusal to register them;

-  restrictions on the right to elect trade union leaders in full freedom (need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

-  restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which allows in particular inspections without prior notice;

-  restrictions on the right of workers’ organizations to perform their activities freely (under section 241 of the Code, strikes are declared not by a majority of the voters but by a majority of the workers; the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in fuel-related services, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86 amended by Legislative Decree No. 35-96 of 27 March 1996)); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (section 390(2) and 430 of the Penal Code and Decree No. 71-86).

The Committee notes that the Government expressed to the mission its willingness to make progress in relation to the issues raised by the Committee of Experts. The Committee welcomes certain measures that were taken and commitments of varying scope that were made by the Government during the mission, which were approved in the presence of the mission by the Tripartite Committee on International Labour Affairs, and it emphasizes in particular that:

(1)  the Ministry submitted to the Tripartite Committee the legislative issues raised in the Committee of Experts so that it could examine the latter periodically with a view to possible amendments;

(2)  the Ministry requested the Labour Committee of the Congress of the Republic to consult the Tripartite Committee on International Affairs concerning initiatives awaiting approval with regard to substantive and procedural reforms;

(3)  the Ministry agrees to the setting up of a rapid intervention mechanism for the examination of complaints intended for the ILO so that an attempt can be made to find a solution within 15 days to the problems put forward before the complaints in question are transmitted to the ILO. This mechanism would enable the ministerial authorities to follow special procedures and the matter in question might be entrusted to a subcommittee of the Tripartite Committee;

(4)  the Ministry will organize a tripartite seminar on the general problems in the export processing sector regarding trade union rights; the seminar will be attended by the ILO and will provide for a plan of action which will be evaluated in the context of follow-up activities.

The Committee notes that the Tripartite Committee on International Labour Affairs has held several meetings with the Labour Committee of the Congress of the Republic. The Committee requests the Government to provide information on the fulfilment of all the commitments made during the mission and expresses the hope that the Government will be in a position in the near future to provide information on progress made in relation to the abovementioned legal provisions. As indicated in the mission report, the Committee emphasizes the number of pending issues and notes the gravity of some of them which have been continuing for years and which include key aspects of trade union rights. The Committee therefore urges the Government to make every effort to ensure that the legislative provisions in question are modified or abolished.

4. Other matters. The Committee also notes that the draft Civil Service Act and Government Agreement No. 700-2003 concerning essential public services in which compulsory arbitration may be imposed, raise problems of conformity with the Convention. These specifically include as essential public services urban and non-urban transport of passengers or freight, postal services, hotels and other lodging premises and their services, social communication media involving the written word, radio, television or any other electronic medium, port and airport operations, etc.

The Committee also notes that, according to the mission report, there is some confusion as regards the competence of the Ministry of Labour in the case of violations of trade union rights in the public sector. The Committee emphasizes the importance of clearly determining the authority responsible for examining complaints concerning the violation of trade union rights.

In general, the Committee notes that, in its comments on the application of the Convention, the ICFTU and UNSITRAGUA refer to a large number of major problems of application of the Convention in practice, which confirm the impact of the legal provisions the amendment or abolition of which has been called for by the Committee of Experts. The ICFTU emphasizes that section 390 of the Penal Code, which provides for imprisonment of one to five years for any persons who perform acts with the purpose of paralysing or disrupting the functioning of enterprises which contribute to the economic development of the country and with the purpose of harming national production, is still in force. The Committee notes that the Government has confirmed that this provision is still in force. The Committee notes that UNSITRAGUA indicates that the only case of a legal strike referred to by the Government is the one of 2002 and not even one industry trade union has been able to be formed.

As regards the exercise of trade union rights in the export processing industry, the Committee notes that, according to the Government, there are currently two trade unions and a total of 53 members. The Committee notes that the mission report mentions the setting up of a specialized labour inspection unit for the export processing industry (where four collective agreements have been signed). The Committee requests the Government to provide information on any complaint concerning the exercise of trade union rights which occurs in that sector, on the corresponding administrative or judicial decisions, and on the manner in which respect for the rights laid down by the Convention for that sector is ensured.

The Committee notes the statements to the mission by the trade union confederations, according to which, in Guatemala, trade unions have a monopoly over collective bargaining; no cases have occurred of collective bargaining undertaken by solidarist associations and the leaders of those associations do not participate in joint committees.

The Committee hopes that it will be able to note concrete progress on the abovementioned points in the near future.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the comments made by the UASP, ICFTU, UGT and UNSITRAGUA in 2002 and the Government’s reply.

According to UNSITRAGUA, section 215(c) of the Labour Code makes it impossible in practice to establish industry trade unions by requiring them to have a membership of workers representing "50 per cent plus one of the workers in the occupation", that is in the industry concerned. The Committee has considered that the number of workers required to establish an industry trade union, in addition to being indeterminate, is indeed excessive and makes it extraordinarily difficult to establish this type of trade union. The Committee notes that the Government has not referred to this matter and requests the Government to take measures to amend the legislation to facilitate the establishment of industry trade unions.

UNSITRAGUA also criticized the draft Code of Labour Procedure. The Committee requested that the new text should be the subject of extensive consultations with the most representative organizations of workers and employers and that their points of view should be duly taken into account. The Committee proposed that the Government should examine this draft text in the context of the technical assistance that it requested. The Committee notes that, according to the Government, the text of the above Code is before the Congress of the Republic and that all those concerned can participate actively in the consultation process that is currently being undertaken in this context. The Committee once again proposes that the above draft text should be examined in the context of the technical assistance requested from the ILO.

Finally, the Committee requested the Government to provide information on the exercise of trade union rights in export processing enterprises (the number of enterprises, the number of organizations and the number of unionized workers), as well as on the number of solidarist associations in the country and on complaints of violations of trade union rights related to such associations. In its report, the Government indicates that there are 97 trade unions, but only two in the export processing sector, with a membership of 52 workers; in both cases, when disputes have arisen, the State has intervened and collective accords have been concluded. The Government refers to the various measures and bodies for compliance with labour rights in export processing enterprises and indicates that export processing enterprises which have not complied with them have been punished (fines, suspension of fiscal privileges and even the closure of enterprises). The Committee concludes that the data available show that trade union rights are exercised to a very meagre extent in export processing enterprises, as indicated by the ICFTU, and requests the Government to take measures to remedy this situation. The Committee once again requests the Government to indicate the number of solidarist associations in the country and to provide information on complaints of violations of trade union rights related to solidarist associations, concerning which the ICFTU has expressed its concern.

The UGT indicates that the registration of trade union leaders with the Ministry of Labour takes up to one year. Moreover, there are very few enterprise trade unions and no more than 3 per cent of salaried employees are members of a trade union. The Government attaches to its report statistics which show that in 2002 some 56 new trade union organizations were registered. It indicates that the current Ministry of Labour is very open to the registration of trade unions and that it ensures compliance with standards respecting trade union rights and provides advice to workers’ groups which request it. The Committee notes this information and requests the Government to provide information on the total number of complaints of violations of trade union rights, with an indication of the types of problems raised.

The Committee requests the Government to provide its comments on the observation by UNSITRAGUA, dated 28 February 2003, relating to the labour penalties applicable, both penal and civil, in cases of strikes by public officials.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report. It notes the comments made by the Trade Union and People’s Action Unit (UASP), the International Confederation of Free Trade Unions (ICFTU), the Union of Guatemalan Workers (UGT), the Trade Union Confederation of Guatemala (UNSITRAGUA) and the World Confederation of Labour (WCL), and the Government’s response to some of the issues raised.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179), as well as comments by the ICFTU and the UGT, confirm that there are many murders, acts of violence, death threats and intimidation against trade unionists. In its previous observation, the Committee noted and welcomed the Government’s indication that a special unit had been set up in the Public Prosecutor’s Office and had begun operations to improve the efficiency of the criminal investigations into acts of violence against trade unionists. The Committee stresses the gravity of the situation and points out that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will take prompt action to ensure that basic human rights and fundamental freedoms, which are essential to the exercise of trade union rights, are effectively observed. The Committee further requests the Government to provide information on the results of the work done by the above unit, including relevant statistical data.

2. Requirement under the Constitution to be of Guatemalan origin in order to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that there have been no new developments in the legislation on these subjects.

The Committee points out that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. The Committee has nonetheless recognized that a State may require foreign workers to have resided in the country for a reasonable period before becoming eligible for trade union office. With regard to section 223 of the Labour Code, the Committee points out that it may be in the interest of branch or industry unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to inform it of any measures taken to amend the legislation and the Constitution so as to ensure that workers are able to determine in full freedom the conditions for the election of their officers and hence appoint representatives of their own choosing.

3. Requirement that, in order to call a strike, the workers must constitute 50 per cent plus one of those working in the enterprise (section 241 of the Labour Code). The Committee recalls that in its previous comments it pointed out that in votes on the calling of strikes only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee asks the Government to take steps to amend the legislation so that only votes cast are counted in reckoning the majority.

4. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and fuel-related services, and the prohibition of sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether or not the restrictions set out in Legislative Decree No. 35-96 had been repealed by implication. The Committee took note of the Government’s undertaking to continue to implement the recommendations of the Committee of Experts and noted that on 8 February 2002 a high-level labour committee was established, comprising Ministers of State and representatives of the Trade Union and People’s Action Unit (USAP) which was to examine such matters, including the repeal of Legislative Decree No. 35-96. The Government’s report, while not providing more information in this respect, points out that there has already been, implicitly, a partial repeal of the decrees criticized by the Committee. The Committee insists on the importance it attaches to the precise determination of trade union rights in legislation and thus requests the Government to take the necessary measures to formally repeal the abovementioned limitations in Decree No. 71-86 as amended by Decree No. 35-96.

5. Assertion by the trade union federations that in recent years there have been no instances of legal strikes. The Committee asked the Government to provide statistics on both the legal and the illegal strikes that had occurred in the past two years and to state, in the latter case, why these strikes were declared illegal. The Committee notes that, according to the Government’s report, in recent months two strikes have been called in the public sector and in a third instance, the workers in the enterprise concerned sought to have the strike declared legal but the enterprise succeeded in delaying the process until the collective agreement was signed. The Committee requests the Government to continue to provide information on the number of legal and illegal strikes that have occurred in the last three years, indicating the sectors involved.

The Committee notes that the Government has submitted its comments to the Committee on Tripartite Affairs and that the Labour Code is currently being reformed. The Committee hopes that it will be able to note in the near future that significant progress has been made in the areas mentioned.

The Committee noted previously that the Government had requested technical assistance from the ILO. It further notes in this connection that the Government is of the view that the direct contacts mission requested in connection with Convention No. 98 by the Committee on the Application of Standards of the International Labour Conference would be more appropriate under the new Government that would take office after the elections (January 2004).

Lastly, the Committee asks the Government to send its reply to the comments of UNSITRAGUA (17 July, 25 August and 1 September 2003) and the WCL (28 August 2003).

In addition, the Committee is addressing a request on certain points directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the comments made by UASP, ICFTU, FENASTEG, UGT and UNSITRAGA.

According to UNSITRAGA, section 215(c) of the Labour Code makes it impossible in practice to establish industry trade unions by requiring them to have a membership of workers representing "50 per cent plus one of the workers in the occupation", that is in the industry concerned. The Committee considers that the number of workers required to establish an industry trade union, in addition to being indeterminate, is indeed excessive and makes it extraordinarily difficult to establish this type of trade union.

UNSITRAGA also criticizes the draft Code of Labour Procedure. The Committee requests that the new text should be the subject of extensive consultations with the most representative organizations of workers and employers and that their points of views should be duly taken into account. The Committee proposes that the Government should examine this draft text in the context of the technical assistance that it has requested.

Finally, the Committee requests the Government to provide information on the exercise of trade union rights in export processing enterprises (the number of enterprises, the number of organizations and the number of unionized workers), as well as on the number of solidarist associations in the country and on complaints of violations of trade union rights related to such associations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. The Committee notes the comments made by the Trade Union and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply in this respect. The Committee also notes the discussions in the Conference Committee (June 2002) concerning the application of the Convention. The Committee notes the comments concerning the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU) (10 January and 18 September 2002) and by the Union of Guatemalan Workers (October 2002), and the comments of the National State Union Workers Federation of Guatemala (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA), forwarded by the Government with its report.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179) confirm the existence of a high number of murders, acts of violence and death threats against trade unionists. The Committee notes and welcomes the Government’s indication of the establishment of a special unit in the General Inspectorate, which has begun operations, to improve the effectiveness of penal investigations of acts of violence against trade unionists, a unit which is currently investigating 50 cases. The Committee emphasizes the gravity of the situation and the fact that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will make diligent efforts to ensure the effective observance of human rights and the fundamental freedoms essential to the exercise of trade union rights.

2. Requirement under the Constitution to be of Guatemalan origin to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that, in view of the constitutional hierarchy of the provisions preventing foreign nationals from exercising trade union office, the legislation cannot contradict this constitutional provision. The Government adds that it is natural that the leaders of a trade union in an enterprise should be workers in that enterprise and that the leaders of branch unions should be working in the respective occupation.

The Committee emphasizes that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. Nevertheless, the Committee has recognized a State may require foreign workers to have resided in the host country for a reasonable period before they are eligible to be elected to trade union office. The Committee points out that branch or industry unions may have an interest in some officers, having legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to amend the legislation and the Constitution to ensure that workers’ organizations can determine in full freedom the conditions for the election of their officers and can therefore elect the representatives of their own choosing.

3. Requirement that to call a strike the workers must constitute 50 per cent plus one of those working in the enterprise (without including in the total workers in positions of confidence or who represent the employer) (section 241 of the Labour Code). The Committee notes the Government’s undertaking to continue giving effect to the recommendations of the Committee of Experts and that this matter is being discussed in the Tripartite Commission on International Affairs. The Committee recalls that in its previous comments it pointed out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee requests the Government to take measures to amend the legislation in the sense set out above.

4. Imposition of a penalty of imprisonment of from one to five years for anyone engaged in acts intended to paralyse or disrupt the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code). The Committee had requested the Government to state whether, with the repeal of section 257 of the Labour Code (which provided for the arrest and trial of persons publicly attempting unlawful strikes), section 390(2) of the Penal Code had ceased to apply in the event of strikes. The Committee notes with interest the Government’s statement that section 390(2) of the Penal Code is no longer in force and is not therefore applicable in the event of strikes.

5. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions set out in Legislative Decree No. 35-96 have or have not implicitly been repealed. The Committee notes the commitment expressed by the Government to continue implementing the recommendations of the Committee of Experts and the fact that on 8 February 2002 a High-Level Labour Committee was established, composed of the Ministers of State and representatives of the Trade Union and People’s Action Unit (UASP), in which these matters will be examined, including the repeal of Legislative Decree No. 35-96. The Government’s report, although it provides no further information, indicates that the decrees criticized by the Committee have already been implicitly partially repealed. The Committee emphasizes the importance of trade union rights being set out with precision in the law and therefore requests the Government to take the necessary measures to abolish the restrictions referred to above, which are contained in Legislative Decree No. 71-86, as amended by Decree No. 35-96.

6. Claims by the trade union federations that in recent years there have been no cases of legal strikes. The Committee notes that, according to Government’s report, the trade union federations have not complied with the provisions of the Labour Code. The Government adds that, for example, a legal strike took place in the municipality of Jalapa this year and that in the public sector actions similar to strikes have been undertaken, for example in the health sector, in judicial bodies and the Department of the Attorney-General. The Committee requests the Government to provide statistics on both legal and illegal strikes over the past two years, with an explanation in the latter case of the reasons that they were declared illegal.

7. Comments made by trade union organizations. The Committee notes that the Government has not replied to the majority of the comments made by trade union organizations. It is raising these matters in a direct request.

Finally, the Committee notes that the Government has requested technical assistance from the ILO. The Committee reminds the Government that the Office is at its disposal.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the report on the direct contacts mission which took place in Guatemala from 23-27 April 2001. It also notes the discussion held in the Conference Committee on the application of Convention No. 87. In addition, the Committee notes the comments made by the Trade Unions and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply to them. The Committee requests the Government to supplement its reply by answering point by point the questions raised by the UASP.

Legislative matters

The Committee notes with satisfaction the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April (during the direct contacts mission) and Legislative Decree No. 18-2001 of 14 May, which settle a number of issues raised by the Committee. Specifically, these Legislative Decrees:

-  eliminate the strict supervision of trade union activities by the Government (section 211 of the Labour Code);

-  eliminate the requirement that members of a trade union executive committee must have no criminal record and must be able to read and write (former sections 220 and 223);

-  eliminate the obligation to obtain a two-thirds majority of the members of a trade union in order to call a strike (former section 222) and instead provides for a majority of 50 per cent plus one of the members making up the quorum of the assembly;

-  eliminate the requirement, in order to call a strike, of at least two-thirds of the workers employed in the enterprise (former section 241) and instead provides for 50 per cent plus one of the workers employed in the enterprise, excluding trusted workers and workers representing the employer. The Committee nonetheless points out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level;

-  eliminate the prohibition on strikes or suspension of work by (1) agricultural workers during harvests (former section 243(a)), and (2) workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (section 243), so that it is now possible for the President of the Republic to suspend a strike only when it seriously affects the activities and public services essential for the country (new final paragraph of section 243); in essential public services, the parties and the judicial authority participate in determining the minimum service;

-  repeal the provision ordering the arrest and trial of anyone publicly attempting a strike or unlawful work stoppage (former section 257); and

-  eliminate the requirement for the courts (in the event of unlawful strikes or work stoppages) to order the national police to ensure continuity of work (former section 255) and instead provides that the courts "may" order and execute precautionary measures to ensure the continuity of activities and the right to work of persons wishing to work;

-  eliminate (implicitly, by virtue of the new section 222 of the Labour Code) the requirement of two-thirds of union members in order to sign a draft collective agreement, which had been provided for in section 2(d) of the Regulation of 19 May 1994 concerning collective agreements.

The Committee observes, however, that the abovementioned legislative decrees do not cover other provisions of the legislation which are not in conformity with the Convention, namely:

-  the requirement of being Guatemalan in order to establish a provisional trade union executive committee (it should be noted that this requirement derives from the National Constitution); and

-  the requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Code).

The Committee requests that the Government take steps to bring the legislation fully into conformity with the Convention on these points.

With regard to the provision of the Penal Code imposing a penalty of imprisonment of from one to five years for anyone engaged in acts for the purpose of paralysing or disrupting the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code), the Committee asks the Government to state whether, with the repeal of section 257 of the Labour Code, which provided for the arrest and trial of persons publicly attempting unlawful strikes, section 390(2) of the Penal Code has ceased to apply in the event of strikes.

As regards the imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport, energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996), the Committee requests that the Government indicate, in the light of the new version of section 243 and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions of Legislative Decree No. 35-96 have, by implication, been repealed.

Practical application

The Committee asks the Government to comment on the assertion by the trade unions that there have been no instances of legal strikes in recent years.

The Committee notes the murders, acts of violence and death threats against trade union members reported in Case No. 1970, examined by the Committee on Freedom of Association and the conclusions of the mission report in this connection. The Committee emphasizes that trade union rights can be exercised only in a climate which is free of violence and pressure. It expresses the very firm hope that the Government will make every effort to ensure effective observance of human rights and of the fundamental freedoms essential to the exercise of trade union rights.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee regrets to note that the Government’s report has not been received. Nevertheless, the Committee notes the discussions held in the Conference Committee on the Application of Standards in June 2000, as well as a previous report received from the Government in May 2000.

In the first place, the Committee notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1970 in which it noted with deep concern the large number of acts of violence against trade union officials and members which have been alleged, including numerous murders and death threats (see the 323rd Report of the Committee on Freedom of Association, paragraph 284(a)). In this respect, the Committee shares the opinion expressed by the Committee on Freedom of Association 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 (see ibid.).

The Committee recalls that for many years it has been criticizing the following provisions of the legislation:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that at least three members of the executive committee are able to read and write (sections 220(d) and 223(b));

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249);

-  the possibility of calling on the national police to ensure continuity of work in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-  the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-  the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential in the strict sense of the term, in particular public transport and services related to the supply of fuel, and the prohibition of inter-union sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee notes with interest that the President of the Republic has transmitted for adoption to Congress a Bill to amend or repeal some of the above provisions:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement that at least three members of the executive committee of a trade union be able to read and write (sections 222(d) and 223(b) of the Labour Code);

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record (section 220(d) of the Labour Code);

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c) of the Labour Code) and of the members of a trade union (section 222(f) and (m) of the Labour Code) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249 of the Labour Code), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249 of the Labour Code) (nevertheless, the Bill continues to prohibit strikes in other services which are not essential in the strict sense of the term, such as various types of transport and the fuel sector);

-  the possibility of calling in the national police to ensure the continuity of work in the event of an unlawful strike (section 255 of the Labour Code), even where there is no breach of the peace.

The Committee expresses once again the firm hope that in the very near future legislation will be adopted which has been the subject of tripartite consultations and which includes amendments to all the provisions criticized. The Committee requests the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by a Government representative to the Conference Committee in 1999 and the discussion which took place subsequently. The Committee also notes that, according to the information of the Government, the ILO has provided it with a draft to address the comments of the Committee, and the tripartite committee concerning international labour issues is preparing draft reforms by consensus to put before Congress. In this context, the Committee reiterates its earlier comments which refer to the following questions:

-- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-- the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that there are at least three members of the executive committee able to read and write (sections 220(d) and 223(b));

-- the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

-- the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

-- the prohibition of a strike or suspension of work by agricultural workers during the harvests, with a few exceptions (sections 243(a) and 249) and of workers of enterprises or services whose interruption would, in the Government's opinion, seriously affect the national economy (sections 243(d) and 249);

-- the possibility of calling on the national police to ensure continuity of work, in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-- the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-- the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential services in the strict sense of the term, in particular public transport and services related to the supply of fuel and the prohibition of solidarity strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee expresses the firm hope that the Government will, as soon as possible, take the measures necessary to bring the legislation into full conformity with the provisions of the Convention, and requests it to provide information in its next report on all measures adopted in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and recalls its previous comments which referred to the following points:

-- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-- limiting the possibility of participating in the establishment of a provisional trade union executive committee or to be elected a trade union official to Guatemalan nationals (new paragraph, sections 220(d) and 223(b));

-- the requirement for the members of the provisional trade union executive committee to make a sworn statement to the effect that, amongst other matters, they have no criminal record and that they are active workers in the enterprise or self-employed workers (new paragraph (d) of section 220);

-- the requirement of being active workers at the time of election and that at least three are able to read and write (section 223(b));

-- the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)), to be able to declare a strike;

-- the prohibition of a strike or suspension of work by agricultural workers during the harvests, with several exceptions (sections 243(a) and 249);

-- the prohibition of a strike or suspension of work by workers of enterprises or services, whose interruption would, in the Government's opinion, seriously affect the national economy (sections 243(d) and 249);

-- the possibility of calling upon the national police to ensure continuity of work, in the event of an unlawful strike (section 255);

-- the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-- the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended not only to cause sabotage or destruction (which do not come within the scope of the protection offered by the Convention), but also to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-- the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential services in the strict sense of the term, in particular public transport and services related to the supply of fuel (section 4(d) and (e) as amended by Order 35-96 of 27 May 1996).

With regard the last point, the Committee notes with interest that the Government, in accordance with its indications in its report, will begin to analyse the services which are not considered essential by the ILO supervisory bodies, for the purpose of the exercise of the right to strike.

The Committee also notes that, in accordance with the Government's statement in its report, almost all of the points raised by the Committee of Experts were submitted for consideration to the Tripartite Committee on International Affairs in April 1997 for the purpose of formulating a Bill, but that a consensus was not reached on the points which should be the subject of reforms. The Committee regrets the internal difficulties that have prevented the Tripartite Committee from meeting and obtaining a tripartite agreement in respect of the legislative amendments proposed by the Committee of Experts.

The Committee again expresses the firm hope that the Tripartite Committee will meet in the near future and will reach an agreement on the Bill which takes into account all the comments made. The Committee again hopes that in its next report the Government will inform it of the concrete measures adopted to bring both its law and practice into conformity with the requirements of the Convention.

The Committee requests the Government in its next report to inform it of the specific measures adopted in this respect.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the observations of the Confederation of United Unions of Guatemala (CUSG) on restrictions to the right to strike of state workers since the approval of legislative Decree No. 35-96 of 27 May 1996 which amends Decree No. 71-86 on freedom of association and regulation of striking by state workers.

In this respect, the Committee notes that amended section 4(e) provides for compulsory arbitration without the possibility of resorting to strike action in the public services such as airline services, public transport and services related to combustibles (d), which are not essential within the strict meaning as defined by the ILO supervisory bodies.

The Committee recalls that the right to strike may be restricted or even prohibited in essential services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey on freedom of association and collective bargaining, 1994, paragraph 159).

The Committee hopes that the Government will adopt appropriate measures so that workers and their organizations in services which are not essential within the strict meaning cited above will be able to exercise the right to strike if they so wish.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report, the information supplied by the Government representative to the Conference Committee on the Application of Standards in June 1996 and the discussions which took place in that Committee.

The Committee wishes to recall that its previous comments referred to:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

- the requirement of Guatemalan nationality in order to form part of the provisional founding executive committee of a trade union or to be eligible for trade union office (new paragraph (d)) of section 220 and section 223(b));

- the requirement of a sworn statement from members of the provisional founding executive committee of a trade union to the effect that, amongst other matters, they have no criminal record and are active workers within the enterprise or are working on their own account (new paragraph (d) of section 220);

- the requirement that candidates must be active workers at the time of election and that at least three of them must be able to read and write (section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (section 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons who call for an illegal strike (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390, paragraph 2, of the Penal Code).

The Committee takes due note that, in accordance with the Government's indications, almost all the questions raised in the Committee of Experts' comments will be submitted for consideration to the already existing Tripartite Committee on International Affairs for the purpose of formulating a Bill. The Committee also takes note that the Government requests ILO collaboration to this effect.

The Committee once again expresses the firm hope that, in drawing up the Bill, the Tripartite Commission will take into account at an early date the comments previously made and that in its next report the Government will supply information on the specific measures adopted to bring both legislation and practice into conformity with the requirements of the Convention.

The Committee requests the Government to send in a detailed report on the specific measures adopted in this respect.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government representative at the Conference Committee in 1993 and the discussions held in the same Committee.

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which addressed the following issues:

The Committee regrets to note that the amendments to sections 223(b) and 241(c) of the Labour Code do not take account of the Committee's comments and that sections 211(a) and (b), 222(f) and (m), 243(a) and 249, 255 and 257 of the Code have not yet been amended. The Committee wishes to recall the following provisions of the legislation which are still at variance with the Convention: -- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Code); -- the requirement of Guatemalan nationality in order to form trade unions or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b)); -- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike; -- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249); -- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249); -- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255); -- the detention and trial of persons in breach of the provisions of Title VII of the Code (section 257); -- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390(2) of the Penal Code). Furthermore, the Committee observes that new paragraph "d" of section 220 of the Code requires a sworn statement from members of the interim executive committee of a trade union to the effect that, amongst other things, they have no criminal record and are active workers in the enterprise or on their own account; in addition, section 223(b) establishes, amongst other requirements for membership of the executive committee, that candidates must be active workers at the time of election and that at least three of them must know how to read and write. With regard to the requirement that members must have no criminal record, the Committee considers that a conviction on account of activities the nature of which is not such as to call into question the integrity of the person concerned, and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 120). With regard to the requirement that members must be active workers in the enterprise, in the opinion of the Committee, provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. They may also deprive unions of the benefit of the experience of certain officers, particularly when they are unable to provide enough qualified persons from their own ranks (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 117); especially if at least three of them are required to know how to read and write, as prescribed by the above-mentioned legislation. The Committee therefore requests the Government to take the necessary measures to make the legislation more flexible by exempting a reasonable proportion of the officers of an organization from the obligation of being employed in the enterprise. The Committee again hopes that the Government will pursue its efforts to bring all its legislation into line with the requirements of the Convention, thereby accommodating the comments that the Committee has been making for many years. The Committee asks the Government to provide information in its next report on the measures adopted to give full effect to the Convention.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government representative to the Conference Committee on the Application of Standards in June 1995 and the ensuing debate. The Committee also notes the interim conclusions concerning, among other matters, the violation of basic human rights and obstacles to the establishment of trade union organizations, which were adopted by the Committee on Freedom of Association (Cases Nos. 1512, 1539, 1595, 1740, 1778 and 1786) and approved by the Governing Body at its 263rd Session in June 1995 (see 299th Report, paras. 402 to 427), as well as the report of the direct contacts mission between representatives of the Government and a representative of the Director-General, undertaken from 13 to 17 February 1995.

In the same way as the Committee on Freedom of Association, the Committee of Experts wishes to signal that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members and that it is for governments to ensure that this principle is respected (see paragraph 407 of the 299th Report, referred to above).

The Committee recalls that its previous comments referred to:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

- the requirement of Guatemalan nationality in order to form part of the provisional founding executive committee of a trade union or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b));

- the requirement of a sworn statement from members of the provisional founding executive committee of a trade union to the effect that, amongst other matters, they have no criminal record and are active workers within the enterprise or are working on their own account (new paragraph "d" of section 220);

- the requirement that candidates must be active workers at the time of election and that at least three of them must be able to read and write (section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons who call for an illegal strike (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390, paragraph 2, of the Penal Code).

The Committee takes due note that, in accordance with the indications provided by the Government representative to the Conference Committee on the Application of Standards in June 1995, the Ministry of Labour will shortly convene a meeting with the social partners to analyse the comments made by the Committee of Experts with a view to overcoming the above divergencies. Nevertheless, the Committee notes with concern that the Government representative gave no assurance that such divergencies would be resolved and indicated that it is the Congress of the Republic that is competent to take legislative action. The Committee also regrets to note that the Government has not replied to its comments.

In the same way as the Conference Committee on the Application of Standards, the Committee of Experts urges the Government to take the necessary measures to guarantee in both law and practice that the provisions of the Convention are fully applied and that the principles of freedom of association are observed.

The Committee requests the Government to provide a detailed report on the specific measures adopted in this respect.

REQUESTS The Government is asked to supply full particulars to the Conference at its 83rd Session.) #CONFERENCE_SESSION:83

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report, the information provided at the Conference Committee in June 1991, and the amendments to the Labour Code introduced by Decree No. 64-92 (Diario de Centroamérica, 2 December 1992).

The Committee notes with interest that the provisions of the Labour Code under which trade unions and their executives were prohibited from taking part in politics (section 207) and that trade unions that took part in matters concerning electoral or party politics must be dissolved (section 226(a)) have been removed from the Code by the above-mentioned amendments.

The Committee regrets to note that the amendments to sections 223(b) and 241(c) of the Labour Code do not take account of the Committee's comments and that sections 211(a) and (b), 222(f) and (m), 243(a) and 249, 255 and 257 of the Code have not yet been amended.

The Committee wishes to recall the following provisions of the legislation which are still at variance with the Convention:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Code);

- the requirement of Guatemalan nationality in order to form trade unions or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons in breach of the provisions of Title VII of the Code (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390(2) of the Penal Code).

Furthermore, the Committee observes that new paragraph "d" of section 220 of the Code requires a sworn statement from members of the interim executive committee of a trade union to the effect that, amongst other things, they have no criminal record and are active workers in the enterprise or on their own account; in addition, section 223(b) establishes, amongst other requirements for membership of the executive committee, that candidates must be active workers at the time of election and that at least three of them must know how to read and write.

With regard to the requirement that members must have no criminal record, the Committee considers that a conviction on account of activities the nature of which is not such as to call into question the integrity of the person concerned, and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see the 1983 General Survey by the Committee of Experts, paragraph 164).

With regard to the requirement that members must be active workers in the enterprise, in the opinion of the Committee, provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. They may also deprive unions of the benefit of the experience of certain officers, particularly when they are unable to provide enough qualified persons from their own ranks (see the 1983 General Survey by the Committee of Experts, paragraph 158); especially if at least three of them are required to know how to read and write, as prescribed by the above-mentioned legislation.

The Committee therefore requests the Government to take the necessary measures to make the legislation more flexible by exempting a reasonable proportion of the officers of an organization from the obligation of being employed in the enterprise.

The Committee again hopes that the Government will pursue its efforts to bring all its legislation into line with the requirements of the Convention, thereby accommodating the comments that the Committee has been making for many years. The Committee asks the Government to provide information in its next report on the measures adopted to give full effect to the Convention.

[The Government is asked to supply full particulars to the Conference at its 80th Session.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report.

The Committee recalls that the discrepancies between the national legislation and the Convention concern the following points:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which limits the eligibility for trade union office to Guatemalan nationals;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production.

The Committee has pointed out repeatedly that with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; and that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions in order to improve the cultural, economic and social conditions of the workers. With regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

Furthermore, the Committee wishes to recall that in previous comments it has also referred to the 259th Report of the Committee on Freedom of Association, in which that Committee examined allegations of excessive delay on the part of the authorities in trade union registration procedures. The Government replied that the Ministry of Labour and Social Security had taken the initiative of proposing amendments to a number of sections of the Labour Code.

The Committee notes that, according to the Government's report, the draft of a new Labour Code which has been approved at its first reading by the Congress of the Republic, is now before the Congress for examination and analysis and takes account of all the Committee's observations.

The Committee hopes that the new Labour Code will be adopted in the near future and that the final version will bring national legislation and practice into full conformity with the provisions of the Convention. The Committee asks the Government to provide information in this respect.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes with interest the establishment of the "Tripartite Committee to Update and Develop the Labour Code" which will put forward proposed amendments to the current Labour Code.

Without overlooking this positive development, the Committee emphasises the need to bring the whole of Guatemalan legislation into conformity with the Convention, and in particular the following sections of the Labour Code of 16 August 1961:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which confines to Guatemalans the possibility of being elected to trade union office;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of from one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production. The Committee once again recalls that: with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions with the task of improving the cultural, economic and social conditions of the workers; and that, with regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption due to a strike would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

However, the Committee notes with interest the information supplied by the Government within the context of Case No. 1459 before the Committee on Freedom of Association (see the 259th Report of the Committee on Freedom of Association, paragraphs 275 to 306, approved by the Governing Body at its 241st Session (November 1988)) according to which the Ministry of Labour and Social Security has taken the initiative of proposing amendments to a number of sections of the Labour Code, which will be examined by the legislative body in the near future.

The Committee once again urges the Government to inform it as soon as possible of the measures that have been adopted or are envisaged in order to bring the whole of the legislation into conformity with the provisions of the Convention.