US embassy cable - 03GUATEMALA2615

UNCLAS SECTION 01 OF 02 GUATEMALA 002615 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ELAB, SENV, ETRD, GT 
SUBJECT: CAFTA LABOR/ENVIRONMENT INFORMATION REQUEST 
 
REF: STATE 283733 
 
1.  This message is in response to RefTel request for 
information on legal remedies or actions the GOG can take to 
address violations of or non-compliance with labor and/or 
environmental laws. 
 
2.  Labor 
--------- 
 
-- Violations of labor law are generally brought to the 
attention of authorities (the Labor Ministry and Labor 
Courts) by complaints from workers and through labor 
inspections. 
 
-- The Labor Ministry and Labor Courts may each attempt to 
facilitate the amicable resolution of conflict.  If no 
voluntary "acta" (compliance agreement) is agreed to between 
the employer and worker, aggrieved parties may seek justice 
in the Labor Courts.  Labor Court decisions may be appealed 
to the Supreme Court, and, if a constitutional principle is 
involved, to the Constitutional Court. 
 
-- Labor Code reforms passed in May 2001 also permit the 
Labor Ministry to cite and fine employers for infractions of 
standards relating to working conditions, minimum wage rates, 
maximum hours, permit requirements, safety and health 
standards, working age, and the rights to organize and 
bargain collectively. 
 
-- Employers have the right to appeal fines over 5000 
quetzals (approx. $625) to the labor courts. 
 
-- Between the enactment of new labor reforms in May, 2001 
and September 17, 2003, the Labor Ministry reported imposing 
1,326,622 quetzals ($165,827) in fines on employers for labor 
violations. 
 
-- The GOG (Ministry of Economy, in consultation with the 
Labor Ministry) also requires respect for labor rights as a 
condition on employers granted tax exemption privileges to 
for-export clothing manufacturers ("maquilas"). 
 
-- The GOG has cited 54 companies in the maquila sector for 
labor violations, and threatened to withdraw tax exemption 
privileges if these companies do not address outstanding 
labor violations by a GOG-imposed deadline.  Two such cases 
resulted in negotiation of collective bargaining agreements. 
 
-- The Executive submitted a package of reforms to the Labor 
Code in May, 2003, which, if passed by Congress, would allow 
plaintiffs to request that the labor court judge embargo the 
assets of the employer or representatives of the named 
company at the outset of a labor court proceeding.  Critics 
argue that the measure is too sweeping and could force firms 
to shut down before a case has been tried. 
 
3.  Environment 
--------------- 
 
The GOG has provisions in its environmental law (1986) for 
stopping an activity which would pollute, for seizing objects 
that would pollute or assist in polluting, for modifying or 
demolishing structures that violate resolutions governing the 
environment, for levying fines that correlate to the offense, 
and for whatever else would be necessary to prevent or 
correct damage to the environment. 
 
The Ministry of Environment investigates complaints.  It has 
the authority to levy fines on site of from 5 to 100,000 
quetzals ($0.60-12,500).  However, usually it investigates 
the complaint and then calls in the implicated company. 
Together they write up a resolution ("acta") which is 
equivalent to a compliance agreement in the U.S.  If the 
"acta" is not fulfilled, the Ministry can try for legal 
redress through the Public Ministry (MP) via the following 
articles of the Penal Code: 
 
Article 346- Illegal exploitation of natural resources. A 
person who would exploit mineral resources, construction 
materials, rocks and natural resources contained within 
territorial oceans, underwater areas, rivers and lakes 
without having a license or authorization from appropriate 
environmental authorities (or who exceed approved license 
limits) will be sanctioned with a 2-5 year sentence. If this 
crime were committed by employees or legal representatives of 
a company or a legal entity, the company will be sanctioned 
with a fine of 5,000-25,000 quetzals ($625-4,125).  If a 
company is a second offender, it will be permanently shut 
down. 
 
Article 347 A- Pollution: 1-2 year sentences and fines of 
300-5,000 quetzals ($48-625) for air, ground, or water 
pollution through toxic emanations, excessive noise or waste 
disposal that could harm people, animals, forest and 
plantations. 
 
Article 347 B- Industrial pollution:  2-10 year sentences and 
fines of 3,000-10,000 quetzals ($475-1,250) to directors, 
managers, principals or beneficiaries of an industrial 
facility or commercial activity that would allow or approve 
air, ground, water pollution through toxic emanations, 
excessive noises. 
No standards or parameters exist for what constitutes, e.g., 
toxic emanations, excessive noise or waste disposal that 
could harm people, animals, forests and plantations.  The 
Ministry of Environment tells us it has neither the equipment 
nor the training nor the staff to set standards and evaluate 
information which would determine the magnitude of damage to 
the environment. 
 
The GOG also has other laws which cover environment, 
specifically, forestry (1996) and fishing (2003). 
 
According to the Ministry of Environment, it dealt with, 
verified and/or resolved 672 complaints in 2002 and 795 in 
2003. 
 
4.  Amparo (Injunction) 
----------------------- 
 
Guatemalan law (specifically the "ley de amparo") protects 
persons against the threat of violation of rights or restores 
rights if violated.  There is no area of law in which 
"amparo" (injunction) protection does not apply (i.e. 
including labor and environmental regulation).  Amparos can 
be temporary or permanent, and have the force of law. 
Amparos can be requested against court decisions, or can be 
filed against government or private entities (e.g. requested 
by a union or environmental organization against a private 
company). 
HAMILTON