Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report in response to its previous comments and the documentation attached. It also notes the observations of the Trade Union Confederation of Guatemala (UNSITRAGUA) submitted on 27 October 2002 and 25 August 2004, which were forwarded to the Government on 18 December 2002 and 2 September 2004 respectively.

Referring to its previous comments, the Committee notes the following points.

1. Language skills of inspectors necessary for their missions in certain agricultural regions. The Committee notes with satisfaction Decree No. 19-2003 issuing the National Languages Act. This Act is a very encouraging response to the point repeatedly raised by UNSITRAGUA, to which the Committee drew the Government’s attention, requesting it to take measures with a view to solving the language-related impediments to the discharge of inspection duties in agricultural undertakings in regions where Spanish is not understood by the indigenous populations. Indeed, in previous comments the Committee has considered it indispensable for labour inspectors to be able to interact sufficiently with the employers and agricultural workers concerned to ensure the effective discharge of their preventive and repressive duties. The objective of the above Act is the recognition, respect, promotion and development of the use of the languages of the Maya, Garifuna and Xinca peoples and to secure the use of these languages in the public and private sectors, as well as in educational, academic, social, economic, political and cultural circles. Pursuant to section 9 of the new Act, all legal provisions have to be translated by the Maya Languages Academy and disseminated in Maya, Garifuna and Xinca. Section 14 of the Act places the obligation upon the State to ensure that goods and services in the public sector are provided in the language of the linguistic community concerned and to promote this practice in the private sector. The Committee notes in particular that candidates for posts in the civil service should, pursuant to section 16, preferably have, in addition to Spanish, language skills facilitating the necessary interaction with the regional population. Measures are envisaged in the same section to achieve these objectives for the recruitment of public servants, in coordination with the Maya Languages Academy. The Committee notes with interest that, despite the financial difficulties involved in the application of this Act, the Ministry of Labour and Social Insurance has signed an agreement with the Maya Languages Academy, and courses in Quiché (one of the Maya languages) have already been commenced for the public servants concerned, including labour inspectors. The Committee requests the Government to continue to provide information on the measures adopted under the National Languages Act, and particularly on their impact on the effectiveness of the labour inspectorate.

2. Adequate training for labour inspectors in agriculture (Article 9, paragraph 3). The Committee notes with interest the strengthening of the skills of inspectors during their initial training in workshops and seminars covering, inter alia, agricultural workers. The Government is requested to provide detailed information on the periodicity of these training activities, their content and their impact on the functioning of labour inspection in agriculture. The Committee asks the Government to indicate whether inspectors subsequently benefit from further training in the course of their employment.

3. Transport facilities and arrangements for the reimbursement of the travel expenses of labour inspectors in agriculture (Article 15, paragraphs 1(b) and 2). The Committee notes the Government’s indication concerning the efforts made to provide labour inspectors with the necessary transport facilities and to grant travel allowances covering their travel expenses. The Committee asks the Government to provide details of the transport facilities allocated to labour inspectors operating in the agricultural sector and who, according to the Government, face particular difficulties in this regard. It also requests the Government to provide any relevant supporting documentation, including copies of provisions relating to the allocation of travel expenses.

4. Cooperation between labour inspection services and government institutions for the effective application of appropriate penalties (Articles 12 and 24). The Committee notes that the Government has not provided any information in its report on the measures necessary to ensure cooperation between inspection services and other competent government bodies for the effective application of appropriate sanctions. It notes that, under section 144 of the Labour Code, specific regulations are to be adopted for the agricultural sector in this regard. The Government is requested to provide copies of the regulations adopted under the provisions of section 144 and of any other text laying down the procedure for reporting offences relating to conditions of work in agricultural enterprises and the imposition of appropriate penalties.

The Committee also asks the Government to provide details on the manner in which it is ensured that the support of the competent public bodies is provided to labour inspectors, who are facing obstructions in the discharge of their duties in certain regions, such as the hostility of employers.

The Committee notes with interest that, under section 2 of Ministerial Order No. 364-2003 of 12 August 2003 establishing the Indigenous Peoples Department in the Ministry of Labour and Social Insurance, the labour inspectorate and the Office of the Labour Ombudsperson cooperate under the coordination of the new Department to ensure compliance with the rights of indigenous workers. The Committee requests the Government to provide information on the practical measures taken to give effect to this ministerial order, which involves labour inspection in agriculture.

Moreover, referring to the points raised in UNSITRAGUA’s further comments received by the ILO, the Committee notes the following.

5. Conditions of work in agricultural enterprises producing for multinational enterprises. UNSITRAGUA refers to cases of enterprises which set production targets for workers in such a way that, in order to earn the minimum wage, these workers have to work in excess of ordinary working hours, with the additional hours being unpaid. According to UNSITRAGUA, "such cases are occurring with greater frequency in agricultural concerns producing bananas as independent producers for the United States multinational fruit company Chiquita, operating in enterprises in the municipality of Morales, in the department of Izabal, and on the southern coast of Guatemala". UNSITRAGUA also refers by way of illustration to the "El Real and El Atlántico ranches in the district of Bogos, municipality of Morales, department of Izabal, where the employers refuse to negotiate unless it is first accepted that piecework is not subject to normal working hours, in violation of the provisions that are in force".

In reports in 2000 and 2001 on the corporate responsibility of Chiquita Brands International, it is emphasized that in Guatemala "hourly workers and administrators sometimes work over 60 hours" and that "workers exceeded the maximum number of overtime hours".

According to UNSITRAGUA, the Ministry of Labour has given full latitude to the employers concerned, in the framework of collective agreements, to impose the exemption of piecework from the legislation on overtime work. The labour inspection is reported to have refused to take a position on the matter (Resolution No. LPR/ahd 6133-2002, dated 25 July 2002). UNSITRAGUA indicates that the appeal lodged by UNSITRAGUA with the Ministry of Labour and Social Insurance, as the hierarchical authority, on 19 September 2002, calling for this resolution to be declared unlawful, was not successful and the practice of forced labour has continued with impunity and the indifference of the labour inspection services.

In comments received in the ILO in August 2004, UNSITRAGUA indicates that the Ministry of Labour has not instigated or even envisaged an investigation by the labour inspectorate to verify the cases reported and control independent production enterprises which use a remuneration system based on piecework or impose production targets as a mechanism to extend ordinary daily working hours without remuneration.

6. Shortcomings of the labour inspection in system agriculture. The Committee notes that, in its comments received in August 2004 on the application of the present Convention, UNSITRAGUA deplores in particular the deficiencies of the labour inspection system in agriculture (insufficient coverage, lack of suitable training, particularly in the specific fields of occupational safety and health in agriculture, lack of the necessary equipment for inspections).

The Committee will examine at its next appropriate session the points raised in these observations, together with the Government’s next report, including any information and documents which the Government considers useful to submit in reply.

The Committee is addressing a request directly to the Government on other points.