V. INTERNATIONAL STANDARDS AND GUATEMALAN LAW

International Standards

The ILO's Convention no. 98, on The Right to Organize and Collective Bargaining, is binding upon Guatemala and provides fundamental guarantees for freedom of association that are both in consonance with anduseful complements to provisions in the Guatemalan constitution and labor law in this regard.8 Article 1 of the convention, cited in full in the labor ministry's 1996 edition of the labor code, sets out the basic requirements for protection of worker rights:

1.Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to:

(a) Make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) Cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

The interpretation of ILO conventions, resulting in a form of international jurisprudence, has been undertaken by its supervisory bodies, notably the Committee on Freedom of Association. Another source of interpretation are the observations made by the ILO's Committee of Experts on the Application of Conventions and Recommendations, a body of independent technical experts appointed by the ILO's director-general that reviews and comments upon the regular reports on implementation of the conventions required of states parties.9 The Committee on Freedom of Association, in considering the implementation of Convention 98, has declared that

Protection against acts of anti-union discrimination should cover not only hiring and dismissal but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker.10

Similarly, a considerable body of case law is cited by the Committee on Freedom of Association in its statement of the principle that "Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity." The Committee of Experts has considered "transfers, denial of promotion, downgrading, disciplinary measures, blacklisting, and deprivations or restrictions on remuneration and social benefits" as among the discriminatory measures within the scope of the convention.11

Convention no. 87, the Convention concerning the Freedom of Association and Protection of the Right to Organise, by which Guatemala is also bound, establishes fundamental principles by which workers' and employers'organizations are to give expression to freedom of association.12 Of particular relevance to the situation of trade unions in the maquila sector are provisions by which union's are to be free from outside interference:

Article 2: Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3: .... (2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Guatemala's congress has also ratified the ILO's Convention no. 154, the 1981 Convention concerning the Promotion of Collective Bargaining, although at the time of writing the Ministry of Foreign Relations had reportedly not yet forwarded the instrument of ratification to the ILO.13 This convention, which came into force in 1983, provides authoritative standards by which to interpret Guatemalan law requiring the promotion of collective bargaining. The convention defines, in article 2, its use of the term "collective bargaining" as extending

to all negotiations which take place between an employer, a group of employers or one or more employers' orgnisations, on the one hand, and one or more workers' organisations, on the other, for-

(a) determining working conditions and terms of employment; and/or

(b) regulating relations between employers and workers; and/or

(c) regulating relations between employers or their organisations and a workers' organisation or workers' organisations.

Part II of Convention no. 154, on promotion of collective bargaining, declares in article 5 that measures shall be taken to promote collective bargaining. Such measures are to have as their aims, among others, that

(a) collective bargaining should be made possible for all employers and all groups of workers in the branches of activity covered by this Convention;

(b) collective bargaining should be progressively extended to all matters covered by subparagraphs (a), (b) and (c) of Article 2 of this Convention.

In addition, of particular relevance to the union experience of the Phillips-Van Heusen plants, the complete absence of collective agreements in Guatemala's maquila sector, and the labor ministry procedures discussed further below, is the convention's aim (d): "[that] collective bargaining should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules."

The recognition of unions for purposes of collective bargaining, in turn, is the object of recommendations by the ILO's Committee of Experts that elaborate upon the terms of Convention No. 98. In the case ofSTECAMOSA, the union at the PVH plants, the union had already been legally recognised as a union in 1992, and so was qualified as a bargaining agent. At issue, however, were the provisions in Guatemalan law by which a company could itself be compelled to recognise, and to bargain with, a lawfully established union. Paragraph 294 of the Committee of Expert's "General Survey...on the Application of Conventions and Recommendations" offers the following guidance:

The procedures for recognizing the representative trade union(s) may be "voluntary", that is to say determined by a bipartite or tripartite agreement, or they may correspond to well-established practice; they may also be "compulsory", that is to say procedures for which statutory provision is made, and oblige the employer to recognize one or more trade unions under certain conditions...14

It remains to note that principles and recommendations published by the ILO's Committee on Freedom of Association offer further guidance on the matter of recognition of trade unions which is relevant to the situation in the maquiladora sector in Guatemala. The committee's statement in paragraph 782 of its Digest of principles and recommendations establishes certain essential principles adhering to freedom of association in the labor context:

The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining and other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. (....)15

Finally, In considering the principle of the recognition of "the most representative organizations," the committee recommends, in paragraph 822 of its Digest, that "Recognition by an employer of the main unions represented in his undertaking, or the most representative of these unions, is the very basis for a procedure for collective bargaining on conditions of employment in the undertaking.

Guatemalan Law

Tutelaridad

Guatemalan labor affairs are regulated by the Constitution of the Republic of Guatemala, by the labor code, ministerial accords, and a variety of regulations. This body of national law, in addition, explicitly recognizes that international labor law to which Guatemala is party takes precedence over national legislation.16

The constitution, in article 103, establishes "the protective nature of labor law" ("la tutelaridad de las leyes de trabajo....").17 The labor code, in turn, is founded on a principle of "protection": a responsibility on the part of the labor ministry and its diverse departments to engage in the active protection of the rights of labor, not simply to serve as an impartial arbiter between the employee and the employer.

The labor ministry is also charged with promoting negotiation between workers and employers. The constitution's article 106 declares that "the State will foment and protect collective bargaining."18

In its last paragraph, article 106 provides that in cases of doubt on the interpretation or scope of legal, regulatory or contractual matters in labor affairs, "the interpretation will be made in the manner most favorable for the workers."19 The fourth preambular paragraph of Decree Number 1441, by which the 1961 labor code is promulgated, sets out the principles of labor law on which it is founded. Most notably, labor law is defined as a right that is protective of workers, compensating for their economic disadvantage," and "granting them a preferential juridical protection."20 This is again made explicit in the labor code's article 17, which declares that in the interpretation of the code and other labor legislation, it is fundamentally "the interest of the workers" that must be taken into account.21

In the same spirit, the labor code's article 211, in its chapter concerning trade unions, requires the executive, through the labor ministry and under the responsibility of the minister of labor and social welfare, "to bring about and put into practice a national policy of the defense and development of trade unionism." To this end, the ministry is actively to collaborate with unions so that they can better carry out their activities, while promoting the development of the trade union movement.22

The constitution also stipulates, in article 46, that international law supersedes domestic legislation. Article 102 of the constitution, concerning minimal social rights and labor legislation, in paragraph (t), declares that "The State will be a party to international or regional conventions and treaties that concern labor matters and will provide workers better protection and conditions. In such cases, what is established in such conventions and treaties will be considered as part of the minimum rights enjoyed by the workers of the Republic of Guatemala." The labor ministry'sofficial 1996 edition of the labor code, updated and annotated, provides usefully cross-referencing between articles of the code and relevant international agreements to which Guatemala is party.

The Obligation to Bargain Collectively Under Guatemalan Law

As noted, Guatemalan labor law declares the negotiation of collective agreements as a goal to be promoted by the state, in fulfillment of international standards. Special provisions are made in article 51 of the labor code that govern situations in which a union's members number more than one-fourth of the workforce. In these situations, the negotiation of collective agreements on conditions of employment is required by Guatemalan law, should a union request this. The union of the Phillips-Van Heusen plants Camosa I and Camosa II, which has had legal status since 1992, invoked article 51 to this end following a membership drive culminating in its general assembly of September 1, 1996.

Article 51 concerns any employer whose workforce is over one-fourth unionized in a particular enterprise (or center of production). In such circumstances, an employer "is obliged to negotiate a collective agreement with the respective union, when the latter requests this." This is an absolute requirement: article 51 requires negotiations whenever the objective circumstances it defines exist. No special procedure must be followed to establish these objective conditions, although a series of rules are set out in article 51 which elaborate upon its terms. For example, the percentage of union members referred to (one-fourth of the workforce) is to be calculated on the basis of the total number of workers at the enterprise in question. The negotiation of the collective bargaining agreement, in turn, is to be undertaken by the delivery of draft agreements to the relevant party, through the medium of the Inspección General de Trabajo (General Labor Inspectorate; hereafter labor inspectorate) so that discussions can begin, either directly or with officials of the labor ministry as intermediaries.

The labor ministry's procedures for the implementation of the Labor Code's norms concerning collective bargaining, in particular article 51, are set out in Governmental Accord no. 221-92.23 The preamble to these regulations refers to Guatemala's obligations under ILO Convention No. 98, concerning trade union rights and collective bargaining, to adopt measures to stimulate and foment the development and use of procedures of voluntary negotiations between organizations of workers and employers. The preamble further notes that the Constitution of Guatemala requires the state to foment and protect collective bargaining, that the labor code establishes the measures to that end, and that these regulations further develop these provisions.

Absent from these detailed regulations is any reference to challenges to the merits of a union's claim to have attained the one-fourth membership level cited in article 51, or to procedures by which these are to be resolved. The regulations, in line with the labor ministry's constitutional obligation to foment collective bargaining, do not belabor a distinction between trade unions that represent more or less than a quarter of the work force, as indeed the ministry's legal obligation is to promote negotiation in any case. Procedures are set out by which it is to be established that the two parties are qualified to negotiate, but these concern the legal status of the parties that are to negotiate, and the consultative process by which a draft agreement is to be approved by a union. The regulations provide no guidance on the labor ministry's procedure for the determination of a union's membership strength.

The functions of the Ministry of Labor and Social Welfare, and its operational unit, the Inspección General de Trabajo (IGT), General Labor Inspectorate (hereafter, labor inspectorate), are set out in the labor code. Article 274 declares that the ministry:

has charge of the direction, study and resolution of all matters concerning labor and social welfare and must take responsibility for the development, improvement and application of all legal dispositions concerning these matters, that are not within the jurisdiction of the courts, principally those that have as a direct object to determine and harmonize the relations between employers and workers.

Article 278, in turn, provides for the labor inspectorate, through its inspectors and social workers, to take responsibility to ensure that employers and workers and labor unions:

comply with and respect the laws, collective agreements and regulations in force that govern conditions of employment and social welfare or that are issued in the future.

The labor inspectors, a principal arm of the agency, have extensive powers and obligations. empowers and obligations set out in article 281. Clause (e) empowers the inspectors to intervene in all labor difficulties and conflicts of which they are aware, whether arising between employers and workers, solely between the former, or solely between the latter, with a view to preventing their development, or achieving their non-judicial resolution, if they have already begun; at the same time, they can question the personnel of an enterprise without the presence of the employer and without witnesses on any matter relative to the application of legal standards. The leeway for inspectors to meet with workers outside the presence of employer representatives allows for determinations to be made without interference by possible outside pressure.

Establishing The Strength of Union Support Under Guatemalan Law

Guatemalan law does not set out specific procedures through which the membership of a union is to be assessed by the labor ministry. Certain norms for trade union organization that are provided for in the labor code may serve to fill this need without recourse to a formal count. These include a union's official record books and membership registries (libros de actas, libros de asociados) which are maintained in accordance with procedures established in the labor code, as well as requirements for an annual reporting of updated membership lists to the labor ministry's Departamento de Registo Laboral (hereafter labor registry), a part of the ministry's Direccións General de Trabajo (General Labor Office). The presentation of such documents, duly updated, would not in itself preclude further challenge to a union's status by an enterprise that was reluctant to negotiate. Conversely, according to experts in Guatemalan labor law, the failure to present such documentation at the time a proposal to negotiate is made does not invalidate a union's claim to a certain membership, so long as adequate documentation is later submitted or membership can be proven by other means.

Any question of a union's actual membership that arises in the course of labor disputes or, as in the Phillips-Van Heusen case, in a proposal to initiate collective bargaining, may ultimately be resolved by the Inspectorate General of Labor. The labor ministry's obligation to facilitate and encourage such negotiations and to resolve questions of fact concerning the bases on which such negotiations are conducted is at the crux of this case. It concerns the implementation of article 51 of the labor code. Article 51 states:

Every employer who employs in an enterprise or specific center of production...the services of more than one-fourth unionized workers, is obliged to negotiate a collective agreement with the respective union when the latter so requests.

To this end the following rules must be observed:

a) The percentage referred to in the above paragraph should be calculated from the totality of workers who provide services to such an enterprise or specific center of production.

b) If within the same enterprise or center of production there are various unions, the collective agreement should be negotiated with that which has the greater number of workers directly affected by the negotiation, in which case it [the union] may not agree to conditions that are less favorablefor the workers than those contained in the contracts in force within the same company or center of production; and

c) When an enterprise or center of production is concerned that by the nature of its activities employs workers pertaining to different professions or callings, the collective agreement should be negotiated with the group of unions that represents each of the professions or callings, so long as they are in agreement. Should they not reach an agreement to this end, the union corresponding to each profession or calling can request the negotiation of a collective agreement with it to determine the conditions relative to that profession or calling within the enterprise or production center in question.

A further clause concerns the procedure by which negotiations are to be initiated and conducted and an agreement is to be reached, as well as provisions to address situations in which negotiations are deadlocked:

For the negotiation of a collective agreement on conditions of employment the respective union or employer will present its proposal to the other party, for its consideration, by means of the nearest administrative labor authority, so that it may be discussed directly or through the intervention of an administrative labor authority or any other friendly arbitrator. If thirty days have elapsed after the petition has been presented by the respective union or employer, and the parties have not reached complete agreement regarding its provisions, any of the parties may go to the labor courts and present the corresponding collective conflict, in order that the point or points over which there is disagreement may be resolved. For this purpose, if possible, the confirmation of the points which have been agreed upon will be presented together with the statement of petition, specifying in this the matters upon which no agreement has been reached. If it is impossible to present said confirmation, the points on which agreement has been reached and the points on which no agreement has been reached must be stated in the statement of petition, in order that the Court of Conciliation may prove these facts.

The proceedings followed in this case will be the ones contemplated in Title Twelve of this Code.

In general, the letter and spirit of Guatemalan labor law requires the state to encourage negotiation between recognized unions and employers. Article 51 does not require a union to prove its membership. However, if an employer challenges the assertion that the union has the requisite 25 percent support, it is the labor ministry's responsibility to verify that the conditions required by law have indeed been met. Insofar as a company is unwilling to engage in collective bargaining negotiations without compulsion, the union's efforts to oblige negotiations under article 51 should be encouraged by the good faith efforts of the labor ministry to determine whether the union's basis to do so was well-founded.