2009 Annual Survey of violations of trade union rights - Guatemala

Population: 13,200,518
Capital: Guatemala
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

Anti-union violence escalated in Guatemala, with trade unionists and their families increasingly becoming the targets of murder, intimidation, harassment, firearm attacks, assaults and abuse. The Guatemalan trade union movement lost numerous leaders to violence during 2008.

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 2001 Labour Code reforms removed some of the legal restrictions on workers' rights. Others remain however:

• The requirement for a person to be of Guatemalan origin and to be actively employed by the company in order to be elected as a trade union leader (Articles 220 and 223 of the Labour Code).

• The obligation to provide written consent in order to form a union, while employers merely need to hold a meeting.

• 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.

• 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 public transport and services related to fuel, and the prohibition of solidarity strikes.

Right to strike: Workers are allowed to strike provided they have the support of 51 per cent of the workforce in the company. The right is limited in the case of public sector employees. Although the law only provides an exception to the right to strike for essential public services, the list of those services is longer than that established by the ILO. As a result, all education, postal, transport as well as energy production, transport and distribution workers are denied the right to strike.

Trade union rights in practice and violations in 2008

Background: Guatemala is caught up in a spiral of violence, linked in part to organised crime and drug trafficking, and this is also affecting workers and their organisations. The country is feeling the impact of the global crisis, with a fall in remittances and a slowing of the economy. The informal economy has grown, absorbing 75% of the economically active population.

Flawed labour justice: The authorities themselves recognise the limitations and deficiencies of the labour inspection system. The shortcomings range from the lack of resources to the lack of appropriate legislation, following the removal of the labour inspectorate's power to sanction employers, leaving it with less authority and fewer chances of ensuring compliance with its decisions. According to workers, the inspectors are more likely to persuade them to renounce their rights than seek to protect them. They often give employers advance warning of their visits.

Guatemala's judicial system is in permanent crisis. In a number of inland communities, judges have been attacked, and some have been forced into exile, while others have been murdered. The lynching of presumed criminals is still commonplace. The labour courts are overrun with applications for the reinstatement of workers, which can occasionally take over ten years to process. The majority of dismissals are groundless, which is why the courts order reinstatement. Employers tend to ignore these rulings, however, and the courts do nothing to ensure they are implemented.

The employment relationship in State institutions has been altered by the use of commercial contracts for tasks of a permanent nature that should be carried out by civil servants. Workers in this situation have to prove that there is an employment relationship before they can form or join a union.

Organising impossible in export processing zones (EPZs): EPZ or maquila employers' ferocious opposition to unions together with weak or non-existent law enforcement, makes exercising the right to strike impossible in these zones. Trade unions have been established in only three of the 200 maquilas operating in the country. Any political will there may be is frustrated by the labour authorities' inability to control the failings and violations in these sectors. The labour authorities and other institutions are hence protecting the multinational companies instead of defending the workers.

Built-in discrimination against unions: Employment relationships are disguised by means of various contractual arrangements designed to prevent workers from exercising their rights.

Employers in the textile maquila take a structured approach to stopping the workers from organising and the women in this sector are confronted with unequal pay and treatment based on their age and social or ethnic origin as well as their gender.

The anti-union practices deployed range from dismissing the workers trying to form union to committing criminal acts.

Anti-union crime and violence: A climate of violence has been created to dissuade workers from forming unions aimed at defending their legitimate rights or to dismantle the few unions that exist.

The Guatemalan trade union movement lost numerous trade union leaders to violence in 2008:

• On 2 March, Miguel Ángel Ramírez Enríquez was shot dead in Huitzisil, in Tiquisate, department of Escuintla. He was a founding member of the banana workers' union, Sindicato de Trabajadores Bananeros del Sur (SINTRABANSUR), at Finca Olga María, which supplies Chiquita Brands International. Prior to his murder, he had been forced to resign from the union under strong pressure and threats from the company.

• Mario Caal, a member of the campesino unity committee, Comité de Unidad Campesina (CUC), was beaten to death on 15 March by members of the army and the National Civil Police in Ensenada Puntarenas, department of Izabal.

• On 29 April, Carlos Enrique Cruz Hernández was murdered at his workplace, the Chickasaw plantation, owned by BANDEGUA, a subsidiary of the multinational company Del Monte. He was a member of the Izabal banana workers' union, Sindicato de Trabajadores Bananeros de Izabal (SITRABI).

• Sergio Miguel García, a member of the national heath workers' union, Sindicato Nacional de Trabajadores de la Salud de Guatemala, and the organising and minutes secretary of the "Vector-Borne Diseases" branch in Puerto Barrios, was assassinated by unknown assailants while travelling to work by motorbike on 13 May in the department of Izabal.

• On 6 May, Marvin Leonel Arévalo Aguilar, a member of the professional and HGV drivers' union, Pilotos Profesionales y del Transporte Pesado de Carga por Carretera, was knocked over and killed while taking part in a picket during the protest action taken by the union.

• Freddy Morales Villagrán, a member of the consultative committee of the union at the distribution company Petén S.A., Sindicato de Trabajadores de la Empresa Distribuidora del Petén S. A. (SITRAPETEN), died from injuries sustained during an attack on his person on 8 June.

• On 21 September, José Israel Romero Ixtacuy, General Secretary of the union at the municipal electricity company, Sindicato de la Empresa Eléctrica Municipal, in the department of Retalhuleu, was shot to death by two individuals while having lunch at a restaurant.

Two trade union legal advisors also lost their lives to anti-union violence in 2008. Numerous other trade unionists were persecuted and threatened, such as Imelda López de Sandoval, General Secretary of the aeronautical workers' union, Sindicato de Trabajadores de Aeronáutica Civil, who suffered two attempts on her life.

Municipal authorities violate workers' rights: Acts of anti-union persecution continued within the framework of the changes in the administrations of the central government and the legislative and municipal authorities. Municipal authorities refused to recognise unions and workers' committees, and proceeded to dismiss their members. The cases filed with labour courts to secure their reinstatement have not progressed.

Trade union members fired: In a clear violation of the collective agreement, the management at the Crown Plaza Hotel dismissed three members of the union, Sindicato de Trabajadores del Hotel Crowne Plaza.

Leaders of the national mortgage bank union, Sindicato de Trabajadores del Banco Crédito Hipotecario Nacional, were dismissed and had their wages withheld for over four months after denouncing anomalies in the bank's administration.

Dismissals at maquila companies: Workers at various maquila companies were dismissed and, to date, have not received the severance pay provided for by law. Human and workers' rights violations are common practice at these companies.