In its 2012 survey of trade union rights in Guatemala, the International Trade Union Confederation (ITUC) described Guatemala as “characterized predominantly by human rights violations.” It went on to explain that Guatemala’s employers “do not respect the right of workers to freedom of association, collective bargaining and decent work,” but that workers should not look to their own government for vindication of their rights: “[t]he Ministry of Labor and Social Welfare, far from fostering labor rights, is the obedient servant of the national and transnational employers.” And even when a labor court decision favors workers' rights—those decisions rarely get enforced.
Sadly, the situation the ITUC describes repeats many of the issues raised by the AFL-CIO and its Guatemalan union partners in a 2008 complaint filed with the U.S. Department of Labor’s Office of Trade & Labor Affairs alleging violations of the labor chapter of the Dominican Republic-Central America Free Trade Agreement (CAFTA). In the CAFTA agreement, the government of Guatemala committed to “effectively enforce its labor laws,” a paltry standard that the government of Guatemala has nevertheless quite openly disregarded since the trade agreement went into effect.
In the nearly five years since the complaint was filed, the situation for workers has not improved. They still struggle to organize their workplaces without retribution, they still fight to receive the pay promised for work performed and they continue to be targeted with violence, including murder, for standing up for the most basic of internationally recognized labor rights. The ITUC reports that 10 unionists were murdered there in 2011—the most recent year for which statistics are available.
During the years the Guatemala labor case has been open, the U.S. Department of Labor has been attempting to engage the government of Guatemala—to convince it to uphold the commitments it made in the CAFTA agreement. The most basic job of a government is to protect the vulnerable—and the government of Guatemala is failing. It is long past time for the government of Guatemala to change or for the U.S. government to proceed to arbitrate the case. Justice delayed is justice denied—and for far too long, justice has been denied for Guatemala's workers.
What do Guatemala’s workers want? Some pretty basic things. The fundamental challenge they face (besides hostile, anti-union employers) is the government’s refusal to enforce labor law. The labor movement of Guatemala contends that the government could improve labor rights and curb violence immediately—if it wanted to. The central problem is an apparent deliberate stance by agencies and individual public servants against protecting workers. This central problem has led to failures in a variety of enforcement areas. To secure worker rights as promised under CAFTA, Guatemalan workers have proposed a corresponding variety of responses.
One critical area in need of improvement involves the absence of criminal prosecution of those who flagrantly violate workers’ rights. To improve the situation, Guatemalan unions have urged the attorney general to develop a policy and train prosecutors to prosecute those who have committed crimes against workers who exercise their right to freedom of association. Unions also have urged the president to require the Comision Internacional Contra la Impunidad en Guatemala (CICIG) to investigate and prosecute these violent crimes, as it had committed to do in 2011.
A second critical issue involves the failure of the executive and judicial branches to enforce labor laws. Inspectors often fail to inspect, and when they do, employers found in violation of the laws only rarely receive sanctions. Even in the infrequent instances when cases do proceed and workers win, tribunals do not enforce sentences. To right these wrongs, Guatemalan unions recommend that the president issue an executive order making clear that labor inspectors indeed possess the power to sanction employers for violations of labor law. These sanctions should include the ability to suspend “free trade zone” privileges for employers in the export and maquilasectors. It’s basic: those who refuse to abide by the law should not then receive special privileges under it.
The government of Guatemala should create a procedure to institutionalize compliance with severance and other payment obligations by employers who close their operations—if such a procedure is not created, workers will continue to be the victims of wage theft, a practice whereby work performed is not compensated (you and I might call work for no pay by a blunter name: slavery).
In addition, Supreme Court orders that employers reinstate workers or otherwise remediate violations must be enforceable—at present, employers frequently ignore these types of orders without consequence. And the police must have the power to investigate and make arrests related to noncompliance with judicial orders from labor courts.
A third key improvement would require public servants to stop tolerating employer noncompliance with labor law. The best laws, regulations and procedures cannot protect workers if those charged with enforcing the law lack the ability, interest or resources to do so. Workers deserve accountability from inspectors, police and officers of the courts (including judges and magistrates). Public servants who ignore, fail to enforce or act in opposition to labor law must face discipline.
A fourth issue involves that the Guatemalan government practice must provide the transparency and interagency cooperation needed to allow effective enforcement. Current policy is so opaque that it is difficult for workers to even discover the true legal entity that has violated their rights. As a result, Guatemalan unions recommend that the president issue an order creating a unified, electronic database, accessible to the public via the internet, that would consolidate a number of existing registries from the Ministry of the Economy, the Registry of Free Trade and Export Enterprises and the Ministry of Labor, among others. The Supreme Court and attorney general should link this database to the current systems that register complaints and criminal cases against employers. Such a database would help workers help themselves (and isn’t that the point of a union in the first place?).
This is just a brief overview of the moderate changes that could have a huge impact on workers’ lives. No one knows better than Guatemalan workers themselves where the current system fails workers—and where the pivot points are to spur meaningful reforms. Both the U.S. and Guatemalan governments would do well to consider and incorporate these ideas into their discussions. Ignoring worker recommendations will likely only result in more of the same—keeping workers on the sidelines instead of putting them front and center. Front and center is the vantage point that will give workers the best opportunity to speak up, be heard and improve their lives through collective action.