Rapport intérimaire - Rapport No. 278, Juin 1991

1. 382. The Committee has already examined this case on two occasions at its May and November 1990 meetings, when it submitted interim reports to the Governing Body. (See 272nd Report, paras. 527-561 and 275th Report, paras. 364-400, approved by the Governing Body at its May-June and November 1990 Sessions, respectively.) Since then, the Government has sent comments, observations and information on this case in a communication dated 12 March 1991.
2. 383. Guatemala has ratified 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).

A. Previous examination of the case

1. 384. The allegations of the International Confederation of Free Trade Unions (ICFTU) still outstanding concerned death threats, abductions, forced disappearances, torture and violent death of trade unionists, as well as acts of repression by the authorities against strike movements. They also concerned the Government's refusal to recognise the legal status of trade union executives.
2. 385. At its November 1990 meeting, the Committee made the following recommendations on the allegations pending:
   • (a)The Committee takes note of the Government of Guatemala's pledge to endeavour to respect human rights.
   • (b)Nevertheless, the Committee deeply deplores the fact that a labour dispute in the teaching sector in 1989 which, according to the complainant organisation, lasted 180 days, was brought to an end by violence, arrests and, according to the allegations, violent deaths.
   • (c)Recalling the importance which it attaches to the right to strike as an essential means available to workers to promote their economic and social interest, the Committee requests the Government to supply as full information as possible on the outcome of the labour dispute which broke out in the teachers' sector in 1989.
   • (d)The Committee also requests the Government to furnish information concerning the alleged death of the leader of striking teachers, Carlos Humberto Rivera, who is said to have been arrested on 9 September 1989 at his home by individuals travelling in a vehicle similar to those used by the army, and who is alleged to have been found dead on the following day along with the bodies of three student teachers, all showing signs of torture.
   • (e)As regards the other aspects of the case regarding the alleged murder of trade unionists in other sectors, the Committee deeply regrets that the Government has supplied no specific comments on these extremely serious allegations presented by the ICFTU.
   • (f)Consequently, the Committee urges the Government once again to set up independent judicial inquiries into the alleged murder of José Orlando Pantaléon, a trade unionist of the STESCA (Coca Cola) Enterprise, who was abducted at 10 a.m. and whose body riddled with bullets and disfigured by torture, was found at 4 p.m. on 2 July 1989; the murder of nine peasants in Alta Verapaz, on 22 August 1989; the murder of Estanislao Garcia y Garcia, an activist in the independent agricultural union, on 17 September 1989; the murder of José Léon Segura de la Cruz, the General Secretary of the electrical workers' union, shot down on 27 September 1989 by two unidentified individuals while leaving his home for work; and the death of peasants in San Marcos and in the Department of El Progreso on 13 and 14 September 1989, and of peasants in the Department of Quetzaltenango, and to communicate the outcome of such inquiries to the Committee.
   • (g)Concerning the allegations of death threats which have led certain trade unionists to choose exile rather than to risk their lives by staying in Guatemala, the Committee notes that, according to the Government, persons complaining of such threats must cooperate with the police in their inquiries.
   • (h)Nevertheless, given the risk of reprisals faced by trade unionists who do complain, the Committee considers that the Government must guarantee the right to life of trade unionists; it therefore again urges the Government to carry out full inquiries into the allegations concerning the death threats denounced by the ICFTU, and to keep it informed of the outcome of these inquiries.
   • (i)Lastly, recalling the importance which it attaches to the right of workers to set up trade unions without prior authorisation, the Committee request the Government to inform it of the outcome of the labour dispute in the Port of Quetzal, and of the granting of legal personality to the workers' trade union in this port.

B. The Government's reply

1. 386. With regard to the non-recognition of the Quetzel Port Enterprise Trade Union, the Government states in its communication of 12 March 1991 that under the Government Agreement No. 879-90 of 7 September 1990, the by-laws of this trade union were approved - thus recognising the trade union's legal personality. Subsequently, on 31 October 1990, the trade union was entered on the Public Register of Trade Unions by the General Labour Directorate.
2. 387. As regards the labour dispute that broke out in the teaching sector in 1989, the Government points out that this dispute has been settled and that, at its request, the Congress of the Republic adopted Decree No. 12/91 to amend the Act on national education on 9 January 1991. This Act contains the basic principles of education in Guatemala and the operational structure of the teaching authority so that it might effectively carry out its functions, as well as the rights and obligations of the State, teachers, students and heads of families.
3. 388. Furthermore, on a more general level, the present Government states its concern at the accusations made against it by the complainant and explains that, in order to respond to these, it has decided to protect workers in Guatemala better and to make freedom of association a reality. It has therefore set up adequate structures for this purpose as it believes in protecting workers' claims. In this respect, it has adopted new regulations under the Act concerning financial compensation for workers for periods of service. This major achievement occurred in October 1990. The regulations under this Act were promulgated on 18 January 1991, several days after the new governmental team had taken office.
4. 389. The Government also states that it has decided that the State should monitor the implementation of standards which uphold freedom of association and that the necessary administrative changes should be made to try and speed up the process of authorisation and registration of trade unions' legal personality. To achieve this, it has limited the public authorities' intervention to merely ensuring that the statutory requirements are fulfilled and that the basic labour rights are respected. The Government has accordingly decided to grant legal personality by means of ministerial agreements and no longer by cabinet-level agreements previously used to apply the current provisions of the Labour Code, provisions that, however, did not have a restrictive nature. Similarly, measures have been taken to advise workers and inform them better of new legislative requirements - and to avoid delays in the processing of files and any oversights they might make in basic formalities.
5. 390. Finally, the Government declares its commitment to defend the trade union movement by guaranteeing the respect and application of the provisions contained in International Labour Conventions Nos. 87 and 98; this was reflected in the position adopted publicly by the Ministry of Labour and Social Welfare before the Constitutional Court, set up as a special court of amparo (enforcement of constitutional rights), when a trade union of the National Blind, Deaf and Dumb Committee made an application for this writ. The Ministry maintained before the Constitutional Court that solidarist associations were unconstitutional and therefore contrary to the setting up of trade unions and trade union activities; indeed, if they were operational, they would totally undermine the aims and objectives of trade unions as set out in the Constitution and the Labour Code.
6. 391. In concluding, the Government points out that it is studying the possibility of introducing a policy to provide security for trade union leaders. This policy will be worked out by the Ministry of Labour in cooperation with the national institutions entrusted with watching over public safety, in order to protect the physical safety and freedom of action of these trade union leaders so that they might carry out their trade union activities unimpeded.

C. The Committee's conclusions

1. 392. The Committee notes that the Government mentions specific measures taken to try and restore freedom of association both in law and in practice.
2. 393. However, concerning the abductions, forced disappearances and torture and the violent death of trade unionists apparently carried out by paramilitary groups or the police, the Committee notes, with deep regret, that apart from a very general statement to the effect that it is studying the possibility of introducing a policy to guarantee the protection of the physical safety and freedom of action of trade union leaders so that they might carry out their functions and actions unimpeded, the Government does not provide any specific information on the measures taken in this respect and even less on the outcome of independent judicial inquiries that it should have conducted into the death and torture of a large number of trade union leaders and activists listed by the complainants as representing workers from several sectors in the economy (bottling industry (Coca Cola), teaching, agricultural and electricity sectors, for instance).
3. 394. The Committee recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is requested. (Digest, para. 70.) Consequently, a climate of violence such as that surrounding the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities. (Digest, para. 76.) The Committee recalls once again that actions accredited to individuals incurs the responsibility of States because of their obligation to prevent violations of human rights.
4. 395. The Committee therefore urges the Government to set up independent judicial inquiries to ascertain the facts, punish those responsible and prevent the repetition of such actions, and to inform it of the outcome of these proceedings.
5. 396. As regards the authorities' slowness in granting legal personality to the Quetzal Port Enterprise Trade Union, the Committee notes with regret that, according to the complainant's allegations, the trade union in question had started negotiations with the Santo Tomás National Port Enterprise in October 1988 and that the by-laws of this trade union - which were referred by the Labour Inspectorate of the Central Area to the General Labour Directorate - were only registered more than two years after the initial negotiations.
6. 397. The Committee recalls that where the approval of union rules is within the discretionary powers of a competent authority this is not compatible with the generally accepted principle that workers' organisations shall have the right to draw up their constitutions and rules in full freedom. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 266.) The Committee trusts that the measures announced by the Government to accelerate the registration proceedings of trade unions will, in the future, allow workers to establish organisations without previous authorisation and workers' organisations to draw up their statutes and internal regulations without the public authorities interfering to restrict this right.
7. 398. As regards the labour dispute that had lasted 180 days in the teaching sector, the Committee notes that, according to the Government, this conflict was settled and that new legislation on national education has been adopted in this respect. This aspect of the case is being examined in the present report within Case No. 1539.