Caso individual (CAS) - Discusión: 1996, Publicación: 83ª reunión CIT (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.