Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Guatemala (Ratification: 1952)

Autre commentaire sur C087

Observation

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The Committee takes note of the supplementary information provided by the Government in the light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and from the social partners this year, as well as the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and on 16 September 2020. The Committee also notes the joint observations submitted by the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala on 16 October 2020. The Committee takes note of the Government's replies to these observations which refer to matters examined in the present comment and to complaints of violations of the Convention in practice.

The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), supported by the International Organisation of Employers (IOE), received on 1 September 2019, also referring to matters examined by the Committee in the present comment.

COVID-19 pandemic and application of the Convention. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala allege that: (i) as a result of the prohibition of public meetings due to the health emergency, a number of trade union organizations are without leadership, as the time-limit for the holding of their executive committees has elapsed; (ii) accordingly, they have repeatedly requested the Ministry of Labour to issue a Ministerial Order extending the period of the executive committees beyond their expiry date to the end of the crisis; (iii) in the absence of action by the Government, the confederations sent the Minister of Labour a draft Ministerial Order, proposing that the Ministry availed itself of the Office’s assistance; (iv) on 1 October 2020, at the end of the state of emergency, when it became again possible to hold public meetings, they asked the Ministry of Labour for guidance for the trade unions that were without leadership, but obtained no reply; and (v) the limbo created by Government inaction rendered the workers and their organizations defenceless, in a context characterised by many anti-union acts. Emphasizing that distancing measures following the pandemic should not affect the capacity of trade unions to represent their members and noting that the Government does not refer to this issue in its comments on the observations of the national trade union confederations, the Commission requests the Government to enter into a dialogue with the trade unions concerned as soon as possible in order to resolve the difficulties raised. The Committee requests the Government to provide its comments on these matters.

Follow-up to the decision adopted by the Governing Body at its 334th Session concerning the closure of the complaint submitted under article 26 of the ILO Constitution alleging non-observance of the Convention

The Committee notes the discussions which took place during the 340th Session (October–November 2020) of the Governing Body concerning additional measures taken to ensure a sustained and comprehensive implementation of the road map adopted in 2013 as part of the follow-up to the complaint submitted in 2012 under article 26 of the ILO Constitution alleging non-observance of the Convention.

The Committee notes that the Governing Body:

(i) welcomed the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and called for funding for its implementation; and

(ii) requested the Office to report annually on its implementation at its October–November sessions for the duration of the three-year programme.

Trade union rights and civil liberties

The Committee notes with regret that since 2005 it has been examining, in the same way as the Committee on Freedom of Association, allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes in this regard: (i) the information provided by the Government in its reports from 2019 and 2020 on the application of the Convention; and (ii) the information contained in the reports presented to the Governing Body in September 2019 by the Government, on the one hand, and by the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, on the other. The Committee further notes, from the Government’s supplementary report of 2020, that the Government submits the document, formulated in a tripartite manner by the National Tripartite Committee on Labour Affairs and Freedom of Association (hereinunder the National Tripartite Committee), which was communicated to the Governing Body in September 2020, and which sets out the position of each of the tripartite constituents vis-à-vis the state of application of the 2013 road map.

The Committee also notes that the Committee on Freedom of Association, at its meeting in October 2019, examined Case No. 2609, which groups together the complaints of acts of anti-union violence, including 90 murders of members of the trade union movement recorded between 2004 and 2018 (see 391st Report, October 2019, Case No. 2609, paragraphs 270–302).

The Committee notes that the Government provides information on the institutional initiatives taken to counter anti-union violence. The Committee notes that the Government indicates specifically that: (i) with the aim of reducing the backlog and providing prompt and effective justice, in 2019 the Public Prosecutor established a unit for the investigation of crimes against judicial officials and trade unionists; (ii) the unit has a directors’ office, a unit for crimes against judicial officials and a unit for crimes against trade unionists, and had at its disposal for the 2020 financial year a budget of Q4,918,412.00 (approximately US$618,500); (iii) with a view to preventing delay in the handling of cases, the Office of the Public Prosecutor has introduced an integrated case management system; (iv) the National Tripartite Committee held a meeting in February 2020 with the Chief Public Prosecutor during which, on the basis of the recommendations of the Committee on Freedom of Association, the Prosecutor was presented with a request to expedite investigations into 35 murder cases; (v) on 6 August 2020, the Government and the social partners approved the technical cooperation programme prepared by the Office and the action to be taken to strengthen the State’s response to anti-union violence; and (vi) the National Tripartite Committee’s plan of work for 2020-2021 provides for high level meetings with the Supreme Court, the Public Prosecutor and the Ministry of the Interior to seek solutions to the anti-union violence. The Committee further notes that, during the discussion at the 340th Session of the Governing Body, the Government referred to a joint statement of 22 October 2020 by the Ministry of Labour, the Ministry of the Interior and the Public Prosecutor's Office on anti-union violence, in which the above-mentioned institutions committed themselves to : (i) agile inter-institutional coordination to guarantee the fundamental rights of trade union leaders and trade unionists; (ii) to seek to increase and strengthen institutional capacities to achieve this objective; and (iii) to energise the spaces for dialogue with representatives of labour rights defenders and with the National Tripartite Commission.

The Committee also notes the updated data provided by the Government regarding investigations into the 90 murders of trade unionists, according to which: (i) 24 judgments have been delivered (19 convictions and 5 acquittals), and one security and corrective measure; (ii) two cases are currently at the public oral hearing stage; (iii) arrest warrants have been issued in seven cases; (iv) six cases have been dismissed, and (v) during the course of 2020, progress has been made with respect to investigations into 13 murders. The Government also states that the investigations led by the Public Prosecutor’s Office are currently subject to the preventive measures adopted to address the COVID-19 pandemic.

The Committee further notes from the Government’s report that between 1 January 2019 and July 2020, 109 requests for protection measures were received for members of the trade union movement and that, with respect to those: (i) 86 perimeter security measures have been established for a period of six months, three personal security measures for the same length of time, and 12 measures consisting of providing a telephone number, in view of the low level of risk identified; and (ii) eight requests remain pending; and (iii) a total of 5 members of the trade union movement now have personal security measures in place, as compared to two in 2019.

The Committee also notes from the CACIF’s contribution to the National Tripartite Committee’s document that the CACIF: (i) refers to the growing difficulty of clarifying events that occurred many years earlier; proposes concentrating the investigation on cases where it is possible to establish the facts and convict the perpetrators; and (iii) states that preventive and protective actions in respect of freedom of association should be reviewed by the National Tripartite Committee to assess the appropriateness of amending one or more or its components.

The Committee further notes from the ITUC’s observations from 2019 and 2020 that it reports: (i) the murder in November 2018 of the leader of the Union of Secondary-Level Distance Education Workers of Santa Rosa; (ii) the murders of six trade union leaders between 2 February and 2 June 2020: and (iii) a number of attempted murders and threats against prominent national and local trade union leaders. The Committee also notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, at the same time as alleging regression in the Ministry of the Interior’s protection policy, report the murders of 12 trade union leaders and members between 1 January and 22 September 2020, as well as three attempted murders. The Committee notes the statement by the trade union confederations that a total of more than 100 trade union members have now been murdered. The Committee notes with deep concern these and other reports of numerous acts of anti-union violence and especially the growing number of murders reported over the past year. The Committee recalls once more in this regard that trade union rights can only be exercised in a climate free of violence, pressure or threats of any kind against trade unionists, and it is incumbent on governments to guarantee respect for this principle.

In that regard, in light of the information provided by the Government and the social partners, the Committee observes that: (i) although three additional convictions of perpetrators of murders committed in 2017 and 2018 were handed down between July 2019 and September 2020, the vast majority of the numerous reported murders of members of the trade union movement remain unpunished; and (ii) although the number of members of the trade union movement accorded protection measures has increased from 2 to 5 in the past year, such measures remain very infrequent in view of the high recorded numbers of murders and other acts of anti-union violence against members of the trade union movement.

In view of the above, while duly noting the action still being taken by the Government, the results reported and the difficulty involved in resolving the oldest murder cases, the Committee can only express its deep concern at the persistence of a high level of impunity, and at the growing number of murders of members of the trade union movement reported last year. The Committee therefore once again urges the Government to continue to take and to intensify, as a matter of urgency, all necessary and time-bound measures: (i) to investigate all acts of violence against trade union leaders and members with a view to promptly determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) to provide prompt and effective protection for all trade union leaders and members who are at risk. With regard to the specific action required to achieve those objectives, the Committee refers to the recommendations made by the Committee on Freedom of Association in the context of Case No. 2609.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

-section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union (in its previous comment, the Committee noted with concern the trade unions’ indication that the combination of the impossibility of establishing sector trade unions under the requirements of section 215(c) and the impossibility in small enterprises, which account for almost all Guatemalan companies, to meet the Labour Code requirement of 20 workers for the establishment of a trade union, meant that most of the country’s workers were unable to exercise the right to join a trade union);
-sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
-section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
-section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and
-sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

The Committee also recalls that for many years it has been asking the Government to take measures to ensure that various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its comment adopted in 2018, the Committee noted with interest the tripartite agreements concluded in February and August 2018 relating to various aspects of the reforms needed to bring the legislation into line with the Convention. The Committee expressed the hope that, on the basis of the above, the Government would soon be in a position to report the adoption, requested for many years, of legislation which fully complies with the obligations contained in the Convention.

The Committee notes that the Government recalls that: (i) it previously submitted Bill No. 5199 with the purpose of bringing the legislation into line with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and (ii) it asked the President of the National Congress Working Committee to defer the discussion in plenary of the Congress of Bill No. 5199 in order to facilitate a tripartite consensus on the above-mentioned reforms; consequently, since August 2017, the National Congress has been awaiting the consensus of the social partners. The Committee notes that the Government, in its supplementary report, also refers to: (i) the important legislative approach of the technical cooperation programme prepared by the Office and supported by the country's tripartite constituents; and (ii) the support currently provided by a consultant hired by the ILO to the National Tripartite Committee by means of a study to update the Guatemalan labour legislation in the perspective of the reforms requested by this Committee in relation to the present Convention, which will lead to meetings with the tripartite constituents in November 2020.

The Committee notes that the CACIF reiterates its commitment to the implementation of the road map and its legislative reform component. While supporting the stance adopted by the Employers’ group in the various ILO bodies, maintaining that the right to strike is neither contained in nor derived from any ILO Convention, the CACIF indicates its continued willingness to work on a tripartite basis to adopt a reform proposal that satisfies national interests in the matter.

The Committee also notes that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala state that in the last two years no progress has been made on the legal reforms contained in the road map and specifically that: (i) the initiatives put forward in the National Tripartite Committee, including by ILO officials, were met with lack of interest on the part of the employers and the Government; and (ii) as a result, it is still not accepted that individuals have the right to organize in sector or industry trade unions, or that foreign citizens have the right to freedom of association or that the persons directly concerned can take the decision to go on strike.

While noting the continued technical assistance of the Office, the Committee notes with regret that it can be seen from the above-mentioned elements that since 2018 no real progress has been made on the drafting or adoption of legislation that would bring the existing laws into line with the Convention. Emphasizing the importance of the tripartite agreements reached in 2018, the need to finally resolve the major discrepancies identified for decades between the legislation and the Convention, and the Government’s ultimate responsibility for the application of the Convention, the Committee trusts that, with the support of the Office through the technical cooperation programme, the tripartite constituents will conclude the dialogue initiated in 2018 on the issues still pending in the very near future. The Committee urges the Government to take the necessary steps, taking the outcome of the above-mentioned dialogue into consideration, to adopt legislation that fully complies with the Convention. The Committee firmly expects that the Government’s next report will contain indications of major progress.

Application of the Convention in practice

Registration of trade unions. In its previous comments, having made special note of the registration of trade unions, the Committee asked the Government to intensify the dialogue with the trade unions on revising and accelerating the trade union registration procedure. The Committee notes the Government’s indication that, further to the recommendations made by the Committee on Freedom of Association in October 2015 in the context of Case No. 3042, there are no obstacles to the free registration of trade union organizations. Specifically, the Government states that: (i) from the total of 36 applications for registration received in 2018, 34 trade unions were registered; (ii) between 1 August 2019 and 31 August 2020, 47 trade union organizations were registered in the Public Trade Union Register, while registration applications from 34 trade union organizations were refused or shelved on the basis of legal requirements, and 60 trade union organizations had to fulfil preconditions to be able to pursue the registration procedure; (iii) the Ministry of Labour prepared and disseminated a “trade union information pack”, after presenting this “pack” at a tripartite meeting in December 2018, in order to provide effective information to workers who wish to establish a trade union; (iv) in May 2019, an invitation was issued to the workers’ sector to participate in talks on the process of establishing trade unions; and (v) the technical cooperation programme prepared by the Office envisages measures to simplify procedures and reduce requirements for registration of trade unions.

The Committee also notes, however, that the Autonomous Popular Trade Union Movement of Guatemala and the Global Unions of Guatemala state that: (i) Guatemala remains the Latin American country with the lowest rate of trade union membership (1.5 per cent); (ii) according to the figures supplied by the Government itself in its report to the Governing Body, there has been a significant decrease in new trade union registrations in 2018 and 2019 compared with previous years; (iii) a substantial proportion of trade union organizations that applied for registration between August 2019 and August 2020 were not registered by the labour administration; and (iv) the figures supplied by the Government demonstrate that the labour administration is going too far in its practice of insisting on amendments to trade union constitutions as a precondition to registration and continues to impose registration requirements which are complex and legally dubious. Noting the latest figures regarding the registration of trade unions and the divergent views of the Government and the trade unions in this regard, the Committee encourages the Government and the trade unions to take major steps forward in their dialogue on accelerating the process of trade union registration. Underlining the opportunity that the technical cooperation programme prepared by the Office presents, the Committee requests the Government to provide information on all progress made in this respect.

Settlement of disputes relating to freedom of association and collective bargaining. With regard to the functioning of the Mediation and Dispute Settlement Subcommittee of the National Tripartite Committee, the Committee refers to its observations on the application of Convention No. 98.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, after noting a series of initiatives that had been taken or envisaged, the Committee urged the Government, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining, provided for in the 2013 road map, was given real visibility in the national mass media. The Committee notes the Government’s observation that the technical cooperation programme prepared by the Office and approved by the national tripartite constituents envisages the “approval, dissemination and implementation of a campaign to promote collective bargaining”. The Committee also notes that the Guatemalan trade union federations claim that no progress has been made in the implementation of awareness-raising and dissemination campaigns relating to freedom of association.

The Committee notes with regret that since its last comment no significant progress has been made in the implementation of the awareness-raising campaign on freedom of association and collective bargaining. Emphasizing the major contribution that the National Tripartite Committee and its tripartite members should make in this respect and the responsibility that ultimately lies with the Government for ensuring that the commitments made in the road map are effectively implemented, the Committee once again urges the Government to take the necessary steps, with the support of the social partners and of the technical cooperation programme prepared by the Office, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media.

Observing the absence of significant progress in the past two years, the Committee urges the Government, in collaboration with the National Tripartite Committee and the support of the technical cooperation programme prepared by the Office to take all the necessary measures to remedy in the very near future the serious violations of the Convention noted for many years by the Committee.