2007 Annual Survey of violations of trade union rights - Guatemala
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Guatemala, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca2d28.html [accessed 21 November 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Guatemala is a country engulfed in structural violence. The trade union movement is subject to constant repression and trade unionists remain under threat. Labour legislation only exists in theory. Many cases of threats, attacks, kidnapping and raids were reported this year. Coca Cola provided incentives to its workers to leave the union, and the Salvadorian company Bocadeli continued to enjoy impunity for proven anti-union practices. The Free Trade Agreement with the United States came into force amid strong opposition from the trade union movement.
Trade union rights in law
The Constitution and the Labour Code recognise workers' freedom of association and all workers have the right to form and join trade unions, including public sector employees, with the exception of members of the security forces.
Workers have the right to organise and bargain collectively, provided the union represents more than 25 per cent of workers in an enterprise, a requirement considered excessive by the ILO. Unions are also allowed to affiliate to international confederations.
The law provides for a system of labour and social welfare courts to rule on violations of the Labour Code. The export processing zones are not exempted from applying the labour laws.
Restrictions: The Labour Code still contains restrictions on trade union rights:
Article 220 of the Labour Code states that members of the union's executive must provide a sworn statement to the effect that they are Guatemalan nationals with no previous criminal convictions and are currently employees of the company or working for it in a freelance capacity. Employers are not subjected to any such procedures, so this is not merely deepening existing inequalities before the law between employers and workers, but also introducing a new form of discrimination within labour legislation, since it fails to take account of the large number of people in Guatemala who cannot read or write, and all those who do not speak or write in Spanish but in their indigenous languages.
the sanction of one to five years' imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that contribute to the country's economic development.
the requirement for compulsory arbitration, without the possibility of recourse to strike action, in public services which are not "essential" in the strict sense of the term, such as health, public transport and services related to fuel, and the prohibition of solidarity strikes.
the absence of a consultation procedure to allow trade unions to express their views to the financial authorities when they are drawing up the budget.
Right to strike: Workers are allowed to strike provided they have the support of 51 percent of the workforce in that company. The right is more restricted for people employed in the public sector. Although the law only provides an exception to the right to strike for essential public services, the list of those services is longer than the one used by the ILO. As a result, all education, postal, transport, transport generation and energy workers are denied the right to strike.
Trade union rights in practice
Right to life endangered through exercise of the right to form a union: By exercising their right to form a union, Guatemalans risk not only their right to work, which is one human right, but also their very lives. The violent and insecure conditions in which trade unions have to operate are not improving. Official denunciations of murders, kidnapping, attacks and raids on union offices and leaders' homes have continued. And the authorities in charge of investigating these incidents and ensuring compliance with the law and access to justice mostly avoid taking any action or do so too late.
The threat of losing their jobs has a powerful dissuasive effect on workers wishing to set up unions. However, the fear of losing their lives is the strongest possible disincentive for those trying to create, build and consolidate trade unions.
Continuous anti-union discrimination: Anti-union discrimination takes different forms. In addition to the extremes of assassination, attempted assassination and imprisonment, it includes dismissals of workers who attempt to set up unions, bargain collectively or carry out trade union actions. There are also blacklists of union leaders and members, and temporary plant closures. The International Textile, Garment & Leather Workers' Federation (ITGLWF) reported to the World Trade Organisation (WTO) in January 2003, that it was common practice for a company to close down a plant and transfer its operations after a trade union had been established.
Employers hostile to unions: The exercise of trade union rights remains severely hampered by hostility towards the trade unions and the failings of the legal system. Employer intimidation against trade unionists is common, and usually goes unpunished. As a result, union membership is very low – only about three per cent of the work force. This inevitably has an impact on collective bargaining, as does the requirement that 25 per cent of workers in an enterprise must be union members for bargaining to take place. Even where employers recognise the union and agree to bargaining, there is a tendency to ignore collective agreements.
Companies use all possible means of preventing the creation of trade unions, either by making dismissals before the union is formed or by filing writs. Another common practice for getting rid of an existing union is for employers, who are well aware of the poverty of most workers and the ineptitude of the Labour Ministry, to sack trade unionists in violation of labour laws and later to buy their favours, sometimes forcing them to denounce the presence of trade unions at the company. They also offer improved wages or working conditions as incentives for leaving the union. Another technique used by companies to avoid their obligations is to change their names, even where there has been no change of ownership.
Weak judicial system leads to impunity: The country has a poor record of labour inspection. According to workers, the inspectors are more likely to persuade them to renounce their rights than seek to protect them, and often give employers' advance warning of their visits.
The labour courts are overrun with applications for the reinstatement of workers, and cases can drag on for over ten years. The majority of dismissals are groundless, which is why judges order reinstatement. Employers tend to ignore court rulings, however, and the courts do nothing to make sure that their own decisions are respected.
Problems with organising in the export processing zones (EPZs): In the EPZs or "maquiladoras" (assembly plants), labour law enforcement is particularly weak, and so far only one collective bargaining agreement has been signed. There is a lack of political will which is reflected by the labour authorities' inability to control the failings and violations in these sectors.
The mobility of such investment is one of the things making it impossible to set up trade unions in the EPZs. To take one example, 20 factories were closed down in just the first five months of 2006, leaving 5,000 workers jobless.
Violations in 2006
Background: The violence in Guatemala is incessant and reached its peak in January with a total of 394 victims. These violations of the right to life included violent deaths, extralegal executions, social cleansing, lynching and massacres. According to the unions, the implementation of the Free Trade Agreement with the United States, which began in July and was opposed by most social organisations and movements, will not help reduce social inequalities but deepen them.
Threats, harassment and attempted raid on home of trade unionist: On 15 March, unknown persons attempted a raid on the home of Felipe de Jesús Sirín, the leader of the Ad Hoc Workers Committee of the National Police. Sirín had been threatened on previous occasions and subjected to repeated harassment and intimidation aimed at forcing him to give up his union post. The last such attempt had been made after the union leader had presented a series of complaints and requested an external enquiry into the anomalous practices in his organisation, which is why the police authorities are themselves suspected of involvement in the attempted raid on his home.
Attempt on the life of a teachers' leader: On 20 March, Claudia Jeannette Rivas, Departmental Secretary of the Teachers' Union of Guatemala (STEG) was attacked by an armed man who tried to shoot her. This occurred a few days after Claudia had complained about corrupt practices in the Education Ministry of Jutiapa. This was not the first time that she had been attacked and her brother, who was also a member of the union, was murdered in 2005.
Union leader kidnapped for two hours: Erwin Estuardo Orrego, a member of the market sellers' union, Frente de Emergencia Vendedores de Mercados de Guatemala, was kidnapped by two armed men on 27 July and held for two hours in the centre of the capital city. They blindfolded him and took him to offices in what he later realised was the police station, where 12 other individuals joined the two kidnappers. He was beaten up but then released after the kidnappers realised that he was on the phone to the Guatemala Human Rights Organisation. Despite official complaints no progress has been made on this case.
Intimidation of union leader: On 26 November at 8pm, Cesar Humberto Guerra, the Labour and Conflicts Secretary of the Itzabal banana workers union (SITRABI) and Education Secretary of the CUSG, was intercepted by three men while driving through the Chicasaw banana plantations in a vehicle owned by SITRABI. The men were armed, fired in the air and broke his windscreen with a stone.
Threats against members of a bank workers union continue: The leaders of the Workers' Union of the National Mortgage Bank (Sindicato de Trabajadores del Crédito Hiptecario Nacional – STCHN) have continued to receive threats. According to UNSITRAGUA, the coercion they experienced in 2005 (see 2006 Survey) was stepped up in 2006, which shows that despite the international denunciations, the company is not giving up its aim of destroying the trade union.
Raid on CUSG office: On 6 April, the head office of the Confederación de Unidad Sindical de Guatemala, CUSG, was raided by unknown persons. They stole computer equipment, books and some other important trade union policy documents.
Dishonest anti-union action by a Coca Cola distributor: On 25 September the sales manager of the Coca Cola distribution company in Huehuetenango held a meeting of the staff and offered anyone leaving the union an immediate pay rise of around 140 dollars and the benefits contained in the Collective Agreement, which had never been applied, along with some other gifts, such as four free crates of water per month. He managed to persuade 50 per cent of the staff and got them to sign a letter stating that they were leaving the union in front of a lawyer.
The Food and Agricultural workers federation, Federación Sindical de Trabajadores de la Alimentación, Agroindustria y Similares de Guatemala (FESTRAS), complained that this was not just a tactic for putting pressure on the union, but was frankly dishonest, since all the things on offer were, in fact, entitlements of all the staff of the company, and with people leaving the union the workers would lose their collective demand that the rights be applied.
Legal recognition denied to agricultural workers' union: On 28 July 2006 UNSITRAGUA was informed that legal recognition was being denied to the independent agricultural workers union, Sindicato de Trabajadores Campesinos Independientes (Liga Campesina), in Cerro Colorado, although the latter had submitted the relevant information and requests for legalisation to the Ministry of Labour three days earlier. The Ministry of Labour made the recognition and registration subject to some illogical requirements that undermined freedom of association, since they required written consent. Though this is a legal request it is not usually insisted on and, as mentioned earlier in the Law section, it has been criticised as a discriminatory requirement.
Registration of a union is an obstacle course: On 6 July, the Workers Union of the Environment and National Resources Ministry, Sindicato de Trabajadores y Trabajadoras del Ministerio de Ambiente y Recursos Naturales (SITRAMARN), was formed, and on 3 August the Ministry announced the dismissal of a series of its founder members. Since the decision to register the union was announced the same day the workers held a demonstration and said they would make an official complaint to the ILO and take the ministry to court. Faced with this pressure the Ministry proceeded to cancel the dismissals.
Once the union had been registered it elected its leadership on 5 August, and submitted all the documents to the competent authorities on 8 August. Three days later the union received a note from the Directorate-General for Labour stating that the registration of the leadership was suspended since it had received a writ from the Environment and National Resources Ministry opposing the constitution of the union. Such suspensions based on writs are illegal.
Impunity for company violating freedom of association: The workers who were dismissed "en masse" by the company Bocadeli de Guatemala S.A. have still not been reinstated in their jobs or been granted their legal rights. Last year, the union at the company, supported by UNSITRAGUA, had publicly denounced the Avestruz plan adopted by the company, which planned the closure of all its plants and their relocation to another place, specifically in order to break up the union which was claiming some withheld wages and trying to negotiate a collective agreement on working conditions.
The company, which is a subsidiary of the Salvadorian multinational Productos Alimenticios Bocadeli S.A. de C.V., has had its assets seized and faces a court case but is still operating in Guatemala under the trade name of Karante S.A.
The company has persisted in its anti-union practices. Despite the embargo, its legal representatives managed to obtain permission from the police to remove the embargoed company vehicles, on the pretext that they needed maintenance. That initiative was blocked on 4 July by the workers, who prevented the embargoed vehicles from leaving the site, though they were threatened with personal injury by Bocadeli representatives. In addition, the company lawyer Randolf Castellanos insulted the leaders of UNSITRAGUA and the representatives of the Attorney-General for Human Rights who were supporting the trade unionists' action.
Sacked for trying to form a union: In November, nine workers who signed a request to the Labour Ministry to form a workers' committee, as the precursor of a union, were dismissed from the Arandia company. An industrial tribunal ruled in favour of their reinstatement. The dismissed persons included Cristina Pérez, who had stated in an interview that security guards sometimes locked her in until late at night, despite the fact that she was breast-feeding a child, and Karen Chacón, who said that the company was treating the workers "like animals". Arandia produces clothes for the retail company Jones Apparel Group, which owns the Gloria Vanderbilt and Nine West brands.