CAFTA LABOR/ENVIRONMENT INFORMATION REQUEST

UNCLAS SECTION 01 OF 02 GUATEMALA 002613

SIPDIS

E.O. 12958: N/A
TAGS: ELAB SENV ETRD GT
SUBJECT: CAFTA LABOR/ENVIRONMENT INFORMATION REQUEST

REF: STATE 283733


1. 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, we
submit the following:


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, aggreived parties may seek justice
in the Labor Courts. Labor Court decisions may be appealed
to the Supreme Court, and, if a consitutional principle is
involved, to the Consitutional 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
--------------

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 Ministerio Publico (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 Ministry of Environment statistics, 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 the
"amparo" (injunction) 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