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

The Committee notes the Government’s report in partial reply to its previous comments, and particularly the points raised by the Trade Union Federation of State Workers Unions (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA).

In addition, the Committee notes the further comments on the application of the Convention submitted by UNSITRAGUA on 27 October 2002 and 25 August 2004, which were forwarded by the ILO to the Government on 18 December 2002 and 2 September 2004, respectively. The Government has not provided information in reply to these comments.

1. Articles 5(a) and 18 of the Convention. Inter-institutional cooperation for the effective application of appropriate penalties. The Committee notes in particular with interest the information supplied on the manner in which Decree No. 18-2001 ensures the effective application of appropriate sanctions for non-compliance with the legal provisions covered by labour inspection. The Committee notes that labour inspectors are now empowered to impose financial penalties and to fix their amount based on the gravity of the violation by multiplying the minimum wage by between two and 12 times. Moreover, the effective application of sanctions is ensured by the possibility for labour inspection to have orders of executory force made rapidly by judicial means. The Committee would be grateful if the Government would provide a copy of any court decision giving executory force to a penalty imposed by the labour inspection authority.

2. Article 6. Status and conditions of service of labour inspection staff. Referring to the comments made by FENASTEG on the status of labour inspectors relating to the lack of stability of their employment, the level of their remuneration and their poor working conditions, and particularly the abusive working hours, the Committee notes that, according to the Government, labour inspectors are governed by the Civil Service Act, which ensures their stability. The Government states that, while overtime work by inspectors is not remunerated, a scheme is used to compensate for overtime through a rest period that is double the overtime worked. They are also granted financial and social benefits. The Committee requests the Government to provide a full copy of the legal provisions providing the basis for the compensation of overtime work and the other social benefits granted to inspection staff, as well as a copy of any document which illustrates their application in practice.

3. Article 11. Adequacy of resources for an effective labour inspection. With regard to FENASTEG’s comments on the insufficiency of resources, logistical means and transport facilities, and the level of remuneration of labour inspectors, which is further diminished by the failure to reimburse their professional travel expenses, the Government emphasizes that labour inspectors who are based in the premises of the Ministry of Labour and Social Security have modern, appropriate and well-equipped offices. The Ministry of Labour adds that means necessary for the performance of all of its functions, including labour inspection, are acquired frequently and that travel and incidental expenses are covered by allowances to inspectors, either in the form of advances or reimbursement afterwards. The Committee asks the Government to provide further information, particularly on the situation of external labour inspection services and offices, the quality and equipment of their offices, the transport facilities available to inspectors and the travel allowances granted to them. It asks the Government to provide copies of any relevant legal texts and any documents illustrating the effect given to them in practice.

4. Article 15(c). Obligation of confidentiality as to the source of complaints. With regard to the allegations of UNSITRAGUA concerning the incapacity of labour inspectors to protect workers from reprisals by the employer, the Government indicates that all the complaints made by workers are dealt with in the same manner by the labour inspection, including those relating to reprisals as a result of a denunciation of a violation of an employer’s obligations. The Committee is bound to emphasize in this regard that, pursuant to Article 15(c) of the Convention, labour inspectors should treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions, subject to such exceptions as may be made by national legislation, and should give no intimation to the employer or her or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. The Government is urged to take appropriate measures with a view to ensuring, both in law and practice, the confidentiality of sources of complaints in accordance with this provision, which is of crucial importance for the collaboration of workers during inspection visits. It is also requested to provide practical information, such as copies of decisions taken against employers who made use of reprisals or copies or extracts of decisions protecting workers threatened by dismissal in such circumstances. The Government is also asked to indicate any exceptional cases in which it is provided in the legislation that the obligation of confidentiality may be raised.

5. Article 3, paragraph 1(b). Provision by labour inspectors of technical information and advice on the application of the legislation. In its comments of October 2002, UNSITRAGUA refers to cases of enterprises which set production targets for workers who, in order to earn the minimum wage, have to work in excess of the ordinary hours of the working day, with the additional hours being unpaid. As the labour inspectorate, by decision No. LPR/ahd 6133-2002 dated 25 July 2002, refused to take a position on this matter, UNSITRAGUA appealed to the hierarchical authority, namely the Ministry of Labour and Social Security, on 19 September 2002 for this decision to be declared unlawful. As the appeal was unsuccessful, this forced labour practice has been continuing with impunity and the indifference of the competent labour inspectorates.

6. Scope of the labour inspection system. UNSITRAGUA moreover drew attention to the conditions of recruitment of state employees belonging to the budgetary category 029. It appears that this category was established to allow the recruitment of skilled professional and technical personnel for specific products and periods. These workers do not have the status of public employees and their contracts are renewed for as long as funds are available. The workers do not have the right to the statutory benefits to which permanent employees are entitled and are not paid for the hours worked in excess of the normal working day. The Committee asks the Government to indicate the branches of the economy in which category 029 workers are employed. If they are engaged in industrial or commercial activities, the Committee urges the Government to take the necessary measures to ensure that they are adequately protected by the labour inspection system.

7. In its observations of 2004, UNSITRAGUA reiterates and develops the questions previously raised and focuses in particular on issues relating to: the inadequate coverage of the labour inspectorate; the incompatibility of the status and conditions of service of labour inspectors with the principles of independence, impartiality, probity, discretion and confidentiality, which are indispensable for the proper performance of the functions of labour inspection; the inadequacy of the training of inspectors and their material conditions of work; the paucity of transport facilities and ineffectiveness of the measures to penalize violations of the labour legislation (Articles 2, 3, 6, 7, 11, 12, 15(a), 17 and 18).

The Committee requests the Government to provide any information that it considers appropriate with respect to the points repeatedly raised by UNSITRAGUA and to support such information with any relevant documentation.

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