Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - Guatemala (Ratification: 1952)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations from the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2014, concerning the application of the Convention. It observes in particular that the MSICG alleges the use of labour inspectors by the Ministry of Labour and Social Welfare (MTPS) to persecute and penalize the trade unions. The Committee requests that the Government send its comments on this matter.

The Committee notes the report of the ILO mission, headed by the Director of the International Labour Standards Department, on the follow-up to the roadmap adopted by the Government in consultation with the social partners in the country, with a view to expediting the implementation of the Memorandum of Understanding concluded on 26 March 2013 between the Workers’ group of the ILO Governing Body and the Government of Guatemala.

Articles 3, 10 and 16 of the Convention. Duties of labour inspectors; human resources matched to inspection needs. With regard to the request for information on the number of inspectors currently in service, the Committee notes the Government’s indication that there are 261 inspectors in the country, 55 of whom are assigned to the central departmental office in the department of Guatemala, with 33 fully employed in the inspection section and 22 working exclusively in the conciliation section. The remaining 206 inspectors are divided between the other 21 departmental offices, each of which has between three and 19 inspectors, whose time is evenly divided between the inspection and conciliation sections. The Committee also notes that the MTPS, under section 49 of the agreement of 3 July 2013 concerning its conditions of service, undertook to create 100 “professional assistant II” posts specializing in labour inspection in 2013 and 100 more in 2014, and to draw up a budget for this restructuring and creation of posts for approval by the Ministry of Finance and the National Civil Service Office. While noting with interest the Government’s efforts to increase the number of inspectors, the Committee requests the Government to clarify whether the “professional assistant II” posts specializing in labour inspection were actually created and budgeted for, what their duties entail and how they are distributed geographically.

As regards the measures adopted or contemplated to separate the duties of control and conciliation and to relieve labour inspectors of duties other than those provided for in Article 3(1) of the Convention, the Committee notes the measures proposed by the Government, in a plan of work due to be executed in September 2014, to define the duties of staff involved in the handling of files. The Committee trusts that the measures that the Government plans to adopt will enable labour inspectors to be relieved of duties other than those assigned under the terms of the Convention, so that they can devote themselves to the performance of the duties defined in Article 3(1) of the Convention. The Committee requests the Government to provide information on any developments in this respect.

Lastly, as regards the request for information on the work of the special labour inspection unit in the maquila (export processing) sector and its results, the Committee observes that, according to the tables included in the Government’s report, the unit’s work in the Guatemala central departmental office focused on cases involving complaints in both 2013 and 2014. The Committee recalls that workplaces must be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee requests the Government to ensure full compliance with the provisions of Article 16 of the Convention.

Articles 5(a), 20, 21 and 24. 1. Establishment of a register of enterprises. Cooperation needed to establish a register of enterprises; drawing up of the annual inspection report. The Committee notes with interest the signature in 2012 of the “Inter-institutional cooperation framework agreement” concerning the exchange of information between the MTPS, the Ministry of the Economy and the Tax Administration Supervisory Authority, an agreement which was also signed by the Guatemalan Social Security Institute (IGSS) in 2013. The Government also points out that the website of the MTPS provides access to information contained in the National Business Register, the main function of which is the registration of all national and foreign companies, their respective legal representatives, commercial enterprises, individual traders and any modifications relating to these bodies. Emphasizing, as it did in its 2006 General Survey on labour inspection and its 2009 general observation, the importance of the availability of a register of workplaces and enterprises liable to inspection containing data on the number and categories of men and women workers employed therein, the Committee hopes that the Government will make use of inter-institutional cooperation with the abovementioned bodies to establish and periodically update such a register, and asks it to supply information on any progress made in this respect.

2. Annual inspection report. The Committee recalls that it has been making comments for many years on the need to publish and send to the ILO an annual report on the work of the inspection services, in accordance with Articles 20 and 21 of the Convention. The Committee notes the Government’s indication that the 2013 annual report of the labour inspectorate was in the process of being approved and would be published on the MTPS website in September 2014. The Committee observes that the website currently shows statistics for national operations conducted by the labour inspectorate during the first few months of 2014 and the cases handled by it, in the conciliation and inspection sections, between January and 23 July 2014, and also on actions undertaken in the capital city. The Committee trusts that an annual report on the work of the inspection services, containing information on all the subjects specified in Article 21(a)–(g), will be published and sent to the ILO in the very near future, in accordance with Article 20. The Committee reminds the Government that it may avail itself of technical assistance from the Office if it wishes.

Articles 5(a), 17, 18 and 21(e). Effective cooperation between the labour inspection services and the judicial authorities. Effective application of penalties. In its previous comments, the Committee asked the Government to provide information on the measures taken to implement the recommendation made in the roadmap referred to above to establish an administrative procedure that would once again allow the labour inspectorate to impose penalties, subject to a right of appeal for employers. The Government reports that, as part of the implementation of the roadmap, the tripartite constituents held extensive discussions at the end of 2013 on the way ahead for the process of imposing penalties for labour law violations. It adds that, in view of the divergences in opinion, the Minister called an end to the discussions and sent the related documentation, on 23 January 2014, to the National Congress for examination with a view to a decision. The Committee observes that, in accordance with the indications made to the ILO mission in September 2014, the Labour Commission of Congress issued a favourable opinion on Bill No. 4703 reforming the Labour Code.

The Committee also notes that the MSICG objects to the abovementioned Bill.

In this context, the Committee recalls (see 2006 General Survey on labour inspection, paragraphs 279–303) that the credibility of any inspectorate depends to a large extent not only on its ability to advise employers and workers on the most effective means of complying with the legal provisions within its remit but also on the existence of an enforcement mechanism. It is essential for maintaining the coherence of the inspection system with regard to its objectives that penalties imposed on offenders are sufficiently dissuasive and effectively applied, in accordance with Article 18 of the Convention. The Committee observes that the National Congress and the ILO International Labour Standards Department signed a Declaration of Intent, which provides for technical assistance in the preparation and drafting of labour legislation. The Committee expresses the hope that the Government will avail itself of technical assistance from the Office and trusts that any legislative measures adopted will take account of the principles above. The Committee asks the Government to provide information on any developments in this respect. The Committee also requests the Government to provide statistical information on infringements detected by labour inspectors, indicating the related legal provisions and the penalties imposed. It further requests the Government to indicate the measures adopted or planned with a view to facilitating effective cooperation between the labour inspection system and the justice system, with the aim of promoting due diligence and thorough treatment by the judiciary of labour inspection reports.

Articles 7, 13 and 14. Training for labour inspectors and control and prevention duties. In relation to the comments which it has been making on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee emphasized in its previous comments the need for, inter alia, ILO technical assistance with regard to training for labour inspectors concerning freedom of association, and expressed the hope that this assistance would be provided in the near future. The Committee notes with interest that, with the assistance of the representative of the ILO Director-General in Guatemala and the ILO Subregional Office in San José, in 2013 three workshops on international labour standards were attended by 109 labour inspectors from all parts of the country; three workshops on the ILO and international labour standards were attended by 70 inspectors from various regions (50 from the north-west and 30 from the centre and south), and 11 training workshops on the detection and referral of cases of trafficking in persons in the light of national and international standards were attended by 288 labour inspectors from all parts of the country. The Committee asks the Government to continue taking steps to ensure that labour inspectors receive appropriate training for the effective performance of their duties.

Also in relation to its previous comments, the Committee further notes with interest the information in the Government’s report on the Labour Inspection (Agriculture) Convention, 1969 (No. 129), to the effect that, with the support of the Faculty of Medical Science of the University of San Carlos and the Cumple y Gana project, the first diploma refresher course in labour inspection and occupational safety and health was held, with the participation of 82 inspectors.

The Committee is raising other matters in a request addressed directly to the Government.