Freedom of Association, Collective Bargaining and a Complaint Brought Against Guatemala

Dean Broomhead

Policy Brief: Freedom of Association, Collective Bargaining and a Complaint Brought Against Guatemala

Backdrop

Freedom of association is one of the underlying entitlements enshrined in the International Labour Organisation (ILO) constitution (1919). It means that all employees and employers should be permitted to form and join organisations to represent themselves. The principle is also asserted in the Universal Declaration of Human Rights (1948), which asserts that workers’ and employers’ organizations shall organize freely and not be liable to be dissolved or suspended by administrative authority, and they shall have the right to establish and join federations and confederations, which may in turn affiliate with international organizations of workers and employers. Freedom of association is a prerequisite for collective bargaining, whereby groups of employees and employers are able to have a voice in negotiations with regards to aspects of the employment relationship. Collective bargaining is similarly protected by the ILO via the Right to organise and Collective Bargaining Convention, 1949 (No. 98). ‘This fundamental convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination, including requirements that a worker not join a union or relinquish trade union membership for employment, or dismissal of a worker because of union membership or participation in union activities.’[1]

The ILO sustains a tripartite structure, bringing together governments, businesses and workers, and is the only tripartite UN agency. This structure makes the ILO a unique forum in which the governments and the social partners can freely and openly debate and elaborate labour standards and policies. The ILO plays a fundamental role in all labour issues and strengthening dialogue and urging states to pursue the policies and programs that have been put in place is of fundamental importance. The Governing Body meeting provides a platform for delegates from all member countries to deliberate, show support and continue to address the challenges that they face. On the 25th March, the governing body meeting was used to discuss an alleged failure by Guatemala to uphold the convention on collective bargaining, which they had ratified.

In March 2003, the first allegations of Guatemala violating the collective bargaining and freedom of association conventions were made to the ILO. The infringements included such acts as serious intimidation and murder of trade union activists. Despite considerable work by the ILO and governments in the region of Latin American and the Caribbean, on the 25th March 2015 at the ILO Governing Body meeting, the minister representing the GRULAC nations stated that 63% of complaints of violation, which were currently being investigated, originate from this region, exemplified by the continuing issues in Guatemala. It was agreed by the Governing Body assembly at the closing of the 231st governing body meeting that the 232nd meeting would consider the following:

  • Requested the Office to provide the Governing Body, at its 323rd Session (March 2015), with updated information on the progress made, including information provided by the Government and the employers’ and workers’ organizations in Guatemala, in particular on the follow-up given to the elements of the roadmap[2]
  • Deferred until its 323rd Session (March 2015) the decision on the appointment of a commission of inquiry
  • Included this item on the agenda of its 323rd Session (March 2015) in order to decide whether other measures needed to be adopted in relation to this complaint
  • Invited the international community to facilitate the necessary resources to enable the ILO Country Office in Guatemala to continue to support the tripartite constituents in the implementation of the Memorandum of Understanding and the roadmap.

Representatives from, the government, workers’ group and employers’ group spoke on the matters and actions already taken, as well as suggested courses of action for the future.

The Deliberation

The Guatemalan government officials informed the governing body that many advances had been made, making reference to the ‘Roadmap’ and recommendations set out by the ILO in previous meetings and communications. The roadmap, first agreed in 2013, was a written document with eleven clear objectives for the Guatemalan officials and timeframes for these goals to be achieved within. The objectives included punishing and ending the attacks against trade union activists, as well as several objectives promising protection to both workers and employers[3]. Firstly, the minister for Guatemala discussed the re-organisation of Guatemalan institutions aimed at handling attacks on the principle of freedom of association. Firstly, “the Special Investigation Unit for Crimes against Trade Unionists has been strengthened and new members have been appointed”[4]. The delegate continued to explain the transformation of this unit, explaining that it would replace previous bureaucratic branches of government, in order to be more efficient and successful in dealing with the crimes committed. . More importantly however, the minister reported on progress in relation to investigations into the murders of 58 Trade Union members. Of the 58; 31 are at the investigation stage, arrest warrants have been issued in 10 cases, a further 3 are waiting warrant of arrest and finally convictions handed out in 8 cases. Moreover, the Guatemalan governmental representatives highlighted that, with the help of the ILO, they have run workshops and events to raise awareness of the importance and necessity of social dialogue, freedom of association and collective bargaining, with particular elements aimed at the special investigation unit.  They accepted that further effort needs to be exerted and welcomed the support of the ILO. Delegates also highlighted resource constraints and financial concerns as reasons for not fully achieving the desired results set out by the ILO in previous consultations. Finally, a main concern raised by the Worker’s representative was that several enterprises had failed to consult workers on immediate termination of contracts, acting in a discriminatory manner towards those employees that were unionized. The Minister countered, asserting that his government had ordered the reinstatement of many of the employees, where appropriate.

This was substantiated by the minister for Cuba, who, whilst highlighting the fundamental requirement to uphold freedom of association, emphasized the willingness of the Guatemalan government to abide by this and urged the ILO to continue to support their aims.

The worker’s representative, however, stressed several objections. He contended that the roadmap aspirations set out by the ILO, had not been pursued with the desired attention and promptness. Additionally, a further 17 murders had been reported between 2013 and 2014. All of these cases were suffering from, “a prevailing situation of impunity.”[5] Whilst the representative did commend the government for being willing to enter tripartite talks, he argued that the aim of establishing an autonomous trade union movement had failed and there had been little progress. A further disappointment occurred when the Ombudsman for Labour Rights was dismissed on 30 January 2015, damaging social dialogue and further threatening the constitutional obligations. The final point made by the workers’ delegate disputed the protection and response mechanisms with respect to threats and attempts of disruption against trade union leaders, unionized workers and others seeking to organize themselves in trade unions. The workers delegate referred to other acts of anti-union violence, in which Guatemalan state forces had allegedly been involved.

The employer’s representative, in a short statement, said that employers supported the work done by both the ILO and the Guatemalan government to increase tripartite communication and pledged support to enhance this. He went on to reiterate the “importance of continuing to investigate all the deaths reported to ensure that they do not go unpunished.”[6]

The Resolution & Conclusion

By upholding the constitution and principles ratified by member countries, the ILO is able to supervise their application and develop cooperation so as to improve circumstances for all those involved in the employment relationship. Freedoms of association and the right to collective bargaining have evidently been under threat in the case of Guatemala. Notwithstanding the efforts and the willingness of the government to transform the current conditions, the Governing Body and committee accepted that more action was necessary. This is evidence of the Governing Body’s efficiency and necessity, to use its expertise, and form measures to assist Guatemala.

The following statements were made in advance of the Governing Body meeting the actions are as follows:
“Taking into account the information communicated by the Government and workers’ and employers’ organizations of Guatemala in relation to all of the points in the roadmap, 1 the Officers of the Governing Body recommend that the Governing Body should:  (a) request the Government to take, without delay with the assistance of the Office and in consultation with the social partners, all the measures necessary to fully implement the roadmap, including measures to address the priority areas that continue to require additional and urgent action;

 (b) request the Office to provide the Officers of the Governing Body, at its 324th Session (June 2015), with updated information on the progress made based on clear indicators and results achieved, including information provided by the Government and employers’ and workers’ organizations of Guatemala, in particular on the follow-up given to the points of the roadmap;

(c) include this item on the agenda of its 324th Session (June 2015) in order to decide whether other measures need to be adopted in relation to this complaint; (d) defer until its 325th Session (November 2015) the decision on the appointment of a commission of inquiry; (e) invite the international community to facilitate the necessary resources to enable the ILO Country Office in Guatemala to continue to support the tripartite constituents in the implementation of the Memorandum of Understanding and the roadmap.”[7]

 

 

[1] ILO – International Labour Standards on Freedom of Association – http://ilo.org/global/standards/subjects-covered-by-international-labour-standards/freedom-of-association/lang–en/index.htm

[2] The ‘roadmap’ was set out by the ILO as an action plan for the Guatemalan government. It covered guidelines and recommendations to deal with the sobering issues, including murder and violence within Guatemala.

[3] The official document on the Roadmap can be found here:

http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_227080.pdf

[4] (ILO Document – Complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution – GB.323/INS/6(Rev.)

[5] Governing Body 323rd Session, Geneva, 12–27 March 2015 – Quote

[6] (ILO document – Complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution – GB.323/INS/6(Rev.)

[7] (ILO document – Complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution – GB.323/INS/6(Rev.)

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