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

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Guatemala (Ratification: 1952)

Autre commentaire sur C098

Observation

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 16 September 2020, as well as the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 16 October 2020.

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

Lastly, the Committee notes the Government’s replies to the different observations made by the ITUC and the national trade union federations, which included among others, allegations of anti-union discrimination and obstruction of collective bargaining in both the public and private sectors. These replies were taken into consideration by the Committee in its examination of the various issues raised in the present comment.

COVID-19 pandemic and application of the Convention. The Committee notes that the national trade union federations allege that, as a result of the COVID-19 pandemic, both the Ministry of Labour premises and the national labour courts were shut down, leaving workers completely unprotected to file complaints for violations of fundamental labour rights. While acknowledging the great challenges posed by the pandemic, the Committee requests the Government to provide its comments on the matter.

In its 2019 comments, the Committee had noted the closure by the Governing Body of the complaint made in 2012 under Article 26 of the ILO Constitution, concerning non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee recalls that in the follow-up to the above-mentioned complaint and in the road map adopted by the Government in 2013 in the context of the complaint, several issues had been raised with regard to the implementation of this Convention.

The Committee takes note of the discussions that took place during the 340th Session of the Governing Council (October–November 2020) concerning the additional measures taken to achieve a sustainable and comprehensive implementation of the afore-mentioned road map.

The Committee notes that the Governing Body (i) welcomed the technical cooperation project “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” (hereinafter the technical cooperation program) and requested that its implementation be funded, and (ii) requested the Office to present an annual report on the implementation of the project at its October–November meetings, during the projected three-year project duration.

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the labour inspectorate. In its previous comments, the Committee noted with satisfaction that Legislative Decree No. 7/2017 had restored the power of the labour inspectorate to impose penalties and asked the Government to provide information on the impact of the new Legislative Decree regarding protection against acts of anti-union discrimination.

The Committee notes that the Government, in its 2019 report and its 2020 supplementary information, indicates that: (i) between January 2018 and April 2019, the total number of penalties notified by the labour inspectorate was 1,233, and between January 2018 and 10 August 2020, 783 fines were paid by the infringing companies; (ii) in this early phase of implementation of Decree No. 7/2017, it is not yet possible to disaggregate and isolate information on the penalties applied for violations of trade union rights and of collective bargaining; (iii) however, the Labour Inspectorate (IGT) is developing an electronic system in order to have disaggregated information on, inter alia, the reasons for the penalties and the action taken to comply with them, and the IGT gives a firm undertaking in this respect to provide the requested information in the very near future; (iv) nevertheless, the IGT was able to report that between 2017 and April 2019 it handled 1,179 complaints from trade unions, including, in particular, 333 allegations of reprisals against trade union leaders; and for the entire year 2019, a total of 539 complaints related to acts that could be classified as anti-union discrimination were received at the national level, and they are being addressed; and (v) the Government has initiated the procedures to adopt the Ministerial Agreement that will render operational the IGT Tripartite Advisory Council. The latter being the appropriate forum for the IGT and the social partners to exchange views on improving the implementation of Decree No. 7/2017.

The Committee welcomes the efforts to develop a comprehensive information system that enables follow-up action to be taken in relation to penalties imposed in matters concerning freedom of association and collective bargaining hopes that the IGT Tripartite Advisory Council will start its activities without further delay. While recalling its previous comments on the content of Legislative Decree No. 7/2017 in the context of monitoring the application of the Labour Inspection Convention, 1947 (No. 81), the Committee once again underlines the vital importance of labour inspection in achieving adequate protection against acts of anti-union discrimination, especially in a context of numerous complaints on this matter. In view of the above, the Committee requests the Government to reinforce the measures taken to ensure that infringements of trade union rights and collective bargaining are given priority treatment by the Labour Inspectorate and to ensure that an effective system of information on the follow-up given to inspections in this regard is established. The Committee requests the Government to provide detailed information in this respect, including the statistics requested in its previous comment. The Committee recalls that the Government may avail itself of the technical assistance of the Office, especially in the context of the start of the technical cooperation program developed by the latter.

Effective judicial proceedings. In its previous comments, the Committee expressed concern at the many complaints alleging the persistent slowness of judicial procedures in relation to anti-union discrimination and the high level of non-compliance with reinstatement orders. While welcoming the initiative to adopt a reform of the judicial labour proceedings, the Committee emphasized the need for this initiative to include as one of its priorities the adoption of effective judicial procedural rules to ensure that all cases of anti-union discrimination are examined by the courts in summary proceedings and that the respective court rulings are implemented rapidly. The Committee notes in this regard that the Government provides updated data on the procedural status of relocation proceedings, according to which, between 1 January 2019 and 7 September 2020: (i) the country's labour courts received 6,257 reinstatement complaints (6,123 for the public sector and 134 for the private sector); (ii) of the 6,257 requests for reinstatement, 1,794 have already resulted in a judicial decision, 148 were dismissed or resulted in a withdrawal and 4,315 are ongoing; (iii) of 1,501 reinstatement rulings ordered during that period, 385 were executed, 918 resulted in an objection by the employer and 198 were not possible for practical reasons (incorrect address and so on); (iv) during the same period, 1,390 appeals were lodged in respect of the reinstatements (1,323 in relation to the public sector and 67 to the private sector); (v) the Public Ministry issued 344 certified reports in respect of the reinstatement proceedings (343 for the public sector and one for the private sector); and (vi) 55 per cent of the amparo proceedings examined by the Supreme Court of Justice relate to labour issues. The Committee further notes the Government’s indication that Bill No. 5809 submitted by the Supreme Court of Justice, which provides for the approval of the Labour and Social Security Procedural Code, is about to be presented in plenary session to the Congress of the Republic. This code will allow for agile and effective judicial proceedings in labour-related matters. The Committee finally notes that the Government indicates that the Subcommittee, in compliance with the road map of the National Tripartite Committee, is examining the failure of two municipalities and two other public institutions to comply with reinstatement orders as a matter of priority.

In the light of the above, the Committee observes that: (i) the general statistics supplied by the Government on the judicial processing of reinstatement requests in the context of collective disputes continue to show a substantial accumulation of cases pending before the labour courts and before the Public Prosecutor’s Office and a very high level of non-compliance with judicial reinstatement orders; (ii) the ITUC and the national trade union federations continue to denounce the lack of progress on judicial protection against anti-union discrimination acts; (iii) CACIF emphasizes that, according to the data supplied by the judiciary, the public sector is where most reinstatements are requested; and (iv) even though the draft reform of the judicial procedural rules on labour matters prepared by the Supreme Court, is intended to expedite labour judicial proceedings in general, it does not appear from the information provided, that the project contains specific provisions aimed at ensuring the summary and effective resolution of cases of anti-union discrimination.

The Committee notes with concern that the details provided above reveal a lack of progress regarding the judicial response to the cases of anti-union dismissals, an issue which has been raised in its comments on the application of the Convention by Guatemala since 2001. In this regard, the Committee emphasizes that: (i) anti-union discrimination represents one of the most serious violations of freedom of association, since it can endanger the very existence of trade unions; (ii) the persistent failure to comply with a high proportion of reinstatement orders in cases of anti-union dismissals has been highlighted in the recent Governing Body discussions on the application of the road map adopted in 2013; and (iii) in two recent cases, the Committee on Freedom of Association once again urged the Government, in consultation with the social partners, to carry out a thorough review of the procedural rules of the relevant labour regulations in order to ensure that the judiciary provides appropriate and effective protection in cases of anti-union discrimination (see 392nd Report, October 2020, Case No. 2869, paragraph 633 and 386th Report, June 2018, Case No. 3188, paragraph 340).

In view of the above, the Committee urges once again the Government to address as a matter of priority the need to provide an effective judicial response to the cases of anti-union discrimination. The Committee especially urges the Government: (i) to take measures as soon as possible, in coordination with all the competent authorities, to overcome the obstacles to effective compliance with the reinstatement orders handed down by the courts; and (ii) to take the necessary steps to ensure that, in consultation with the social partners, new procedural rules are adopted so that all cases of anti-union discrimination are examined by the courts in summary proceedings and the respective court rulings are implemented rapidly. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted with growing concern the low and ever-decreasing number of collective agreements that had been signed and approved. The Committee therefore asked the Government to make use of the new National Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles, both legislative and practical, to the effective promotion of collective bargaining with a view to taking measures to foster collective bargaining at all levels.

The Committee notes the information provided by the Government indicating that approval was given to: (i) 17 collective agreements in 2017 (11 in the public sector, six in the private sector); (ii) 14 collective agreements in 2018 (six in the public sector, eight in the private sector); (iii) 12 collective agreements between 1 January and 18 September 2019 (eight in the public sector and four in the private sector); and (iv) six collective agreements between August 2019 and 31 August 2020. The Committee takes note in this regard of the allegations of the ITUC and the national trade union federations, based on the statistics provided by the Government, that there is a serious decline in collective bargaining in the country.

The Committee notes with concern that the already extremely low number of collective agreements agreed and approved continues to decline, also recalling that, to date, collective agreement are negotiated and concluded on a decentralized basis, at the level of enterprises and public institutions, which suggests, in the absence of statistics in this respect, extremely low coverage in terms of collective bargaining in the country. The Committee also recalls that, in its 2018 comment, it noted with interest that the tripartite agreement concluded by the national constituents in November 2017 identified, among the objectives of the legislative reform due to be submitted to the Congress of the Republic, the mechanisms and requirements applicable to sectoral collective bargaining. In this regard, the Committee notes the Government’s 2019 indication that, in the context of the discussions on the legislative reforms contemplated in the road map of 2013 and the agreement of 2017, the national constituents agreed in August 2018 on a set of principles on which the future legislation should be based, principles that include the right to collective bargaining of industry trade unions. While noting the absence of concrete progress on the development of legislative instruments based on the principles agreed upon in 2018, the Committee notes that the Government indicates in its supplementary information that: (i) the technical cooperation project developed by the Office contains activities relating to the promotion of collective bargaining; and (ii) a consultant hired by the ILO is providing support to the National Tripartite Committee by carrying out a study to update Guatemalan labour legislation in the light of the reforms requested by this Committee, assistance which would lead to meetings with the tripartite constituents in November 2020.

The Committee requests the Government to make use, with the support of the technical cooperation program developed by the Office, of the National Tripartite Committee on Industrial Relations and Freedom of Association to examine with the social partners the obstacles, both legislative and practical, to the effective promotion of collective bargaining so that it is able to take measures to promote collective bargaining at all levels. In this regard, the Committee expresses the firm hope that the agreement of August 2018 concerning the principles on which the reform of the labour legislation should be based will soon be reflected in the adoption of legislation in the very near future. The Committee requests the Government to provide information in that regard.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In its previous comments, noting the observations of the ITUC and various national trade union federations and recalling that Guatemala has ratified the Collective Bargaining Convention, 1981 (No. 154), which covers the public sector, the Committee asked the Government to take steps to facilitate the process of the approval of collective agreements in the public sector and ensure that any refusal to approve a collective agreement was on grounds compatible with the Convention. The Committee also asked the Government to send its comments on the trade union observations denouncing the prohibition on wage negotiation in the public sector and the legal proceedings instituted by the Public Prosecutor’s Office against 14 collective agreements. Lastly, the Committee asked the Government to take the necessary steps, in consultation with the trade union organizations concerned, to ensure that collective bargaining in the public sector takes place in a clear and balanced regulatory framework.

With regard to the approval of public sector collective agreements and the possibility of negotiating wages in the public administration, the Committee notes the 2019 Government’s indications that: (i) section 96 of the Act on the general budget (revenue and expenditure) of the State for the 2019 financial year and section 19 of the “Annual plan of wages and regulations for the Administration” (Government Order No. 245-2018) recognize the possibility of pay negotiations in government entities, taking account of the financial conditions of the State, such information being provided by the Ministry of Finance; (ii) the Ministry of Labour issued a circular dated 25 January 2019 to expedite the process of approval of collective agreements; (iii) in late 2018, the Ministry of Labour submitted to the National Tripartite Committee a draft government order for the purpose of establishing the formal requirements for approval of collective agreements in the public administration; tripartite consolidation of the text is pending; and (iv) the collective agreement on conditions of work of the Education Workers’ Union of Guatemala has already been approved and is now in force. The Committee notes that, in the additional information provided in 2020, the Government informs that, in addition to the six collective agreements approved between August 2019 to August 2020, 15 additional applications for approval were requested in the same period, the labour administration is examining 14, and a file has been returned to the applicants for completion. In this regard, the Committee also notes the recurrent allegations by the national trade union federations according to which the labour administration would have used the approval process to hinder collective bargaining in the public sector. Stressing the importance of strengthening the regulatory framework applicable to the approval of collective bargaining agreements in the public sector, the Committee notes with concern the very long periods to which public sector collective bargaining agreements are still subject before approval. The Committee requests the Government to, in consultation with the representative trade union organizations of the sector, identify appropriate measures to remedy this situation and to report on any progress in this regard.

With regard to the claims of the trade union organizations concerning investigations and legal proceedings launched by the Public Prosecutor’s Office against a number of collective agreements in the public sector, the Committee notes the Government’s statement that the Public Prosecutor’s Office does not systematically challenge the benefits granted through collective bargaining but seeks to ensure that the principle of legality prevails in the exercise of the right to collective bargaining. The Committee once again considers that a practice whereby the authorities almost systematically challenge the benefits awarded to public sector workers on the basis of considerations related to “rationality” or “proportionality” with a view to their cancellation (by reason, for example, of their cost deemed to be excessive) would seriously jeopardize the very institution of collective bargaining and weaken its role in the settlement of collective disputes. However, if the collective agreement contains provisions that are contrary to fundamental rights (e.g. non-discrimination), the judicial authority could nullify these provisions so as to ensure respect of higher standards (see the 2012 General Survey on the fundamental Conventions, paragraph 207). The Committee therefore once again requests the Government to take all possible steps to promote the negotiated, consensual settlement of any disputes that arise regarding the supposedly excessive nature of certain clauses in collective agreements in the public sector.

Application of the Convention in practice. Maquila sector. In previous comments, having noted with concern that the unionization rate in the sector was below 1 per cent and that the approval of only one collective agreement covering a maquila (export processing) enterprise was known in recent years, the Committee asked the Government to examine with the social partners, in the new National Tripartite Committee on Industrial Relations and Freedom of Association, the obstacles to the exercise of trade union rights and collective bargaining in the maquila sector and to intensify initiatives for the effective promotion of these rights in the sector. The Committee notes that in its complementary information, the Government states that from 2013 to 16 March 2020, five registered unions were counted in this sector. In the absence of additional information, the Committee is bound to repeat its previous requests and hopes that the Government will provide information on specific initiatives to promote collective bargaining in the maquila sector in its next report.

Application of the Convention in municipal authorities. In its comment published in 2018, in view of the large number of allegations of violations of the Convention at the municipal level, the Committee urged the Government to take all the necessary measures to ensure compliance with the Convention in municipalities. The Committee notes the Government’s indication that, in the context of the entry into office of the new municipal authorities resulting from the municipal elections of June 2019, the Ministry of Labour had submitted to the National Tripartite Committee a proposal for a statement concerning the need to avoid anti-union dismissals in municipal authorities. The Ministry is still awaiting comments on this matter from the worker members of the National Tripartite Committee.

The Committee also notes the Government’s detailed replies to the observations of the ITUC, the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala concerning specific situations within municipalities. The Committee notes with concern that the information supplied shows that both labour inspections and court decisions are often insufficient to resolve situations involving violations of the Convention, especially in relation to cases of anti-union dismissals of municipal workers.

Underlining the need for effective mechanisms to ensure that municipal authorities comply with the rule of law and that an exhaustive analysis is carried out of the reasons for the high degree of conflict in this sector, the Committee urges the Government to take all the necessary measures, including the adoption of legislation if necessary, to ensure the application of the Convention in the municipal authorities. The Committee requests the Government to provide information on progress made in this respect.

Tripartite dispute settlement in relation to freedom of association and collective bargaining. In its comment on the present Convention, published in 2018, the Committee noted with interest that the tripartite agreement signed on 2 November 2017 provided that the new National Tripartite Committee on Industrial Relations and Freedom of Association will incorporate the functions of the tripartite Dispute Settlement Committee, established in 2016 for the purpose of resolving disputes concerning freedom of association and collective bargaining by means of voluntary conciliation. In the above comment, and in its comment on the application of the Labour Inspection Convention, 1947 (No. 81), published in 2019, the Committee, noting the large number of disputes referred to the ILO, encouraged the Government and the social partners to devote the necessary efforts to ensure that the new Dispute Settlement Subcommittee can contribute very quickly to a better application of the Conventions on freedom of association and collective bargaining ratified by Guatemala.

The Committee notes the Government’s indication that the Subcommittee began to function effectively and that a direct agreement was reached between the Ministry of Environment and Natural Resources and the unions of the mentioned Ministry. The Committee also notes that the national trade union federations, for their part, claim that the Subcommittee does not function because of a lack of tripartite spirit and the unwillingness of the employers who were invited to the Subcommittee. The federations allege that the agreement referred to by the Government was reached outside the Subcommittee and that it was breached by the employer, leading to the outbreak of the collective conflict.

Stressing the important role that the Dispute Settlement Subcommittee can play in a context of numerous allegations of anti-union discrimination and noting that the technical cooperation programme developed by the Office provides for its strengthening, the Committee hopes that the Government will be able to report on the progress made in its activities.

Noting the lack of significant progress the Committee urges the Government to take all necessary steps, with the participation of the National Tripartite Committee and with the support of the technical assistance program developed by the Office, to remedy as soon as possible the serious violations of the Convention that the Committee has been raising for many years.