Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

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

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the information supplied by the Government in response to its previous comments, and the documents attached to the report. It also notes the communication of 30 August 2010 from the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) on the application of the Convention, sent by the ILO to the Government on 15 September 2010. The Committee will examine the Government’s report at its session of November–December 2011 together with any comments the Government may wish to make in reply to the matters raised by the MSICG.

[The Government is asked to reply in detail to the present comments in 2011.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report for the period ending 1 September 2008 and the numerous documents attached, sent to the ILO on 25 September 2008. It also notes the comments made on 31 August 2008 by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) concerning the application of the Convention, sent to the Government by the ILO on 17 September 2008. Referring to its 2007 observation concerning in particular the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA) in 2004, the Committee also notes the Government’s replies to these comments, the content of the collective agreement on conditions of work (“the collective agreement”) concluded between the Ministry of Labour and Social Security (MTPS) and the trade union of employees of that Ministry (SIGEMITRAB), approved by MTPS resolution No. 078-2008 of 9 April 2008, as well as the analysis of the situation relating to labour inspection carried out by the ILO in September 2008 at the request of the MTPS, and the action plan drawn up in November 2008 for the implementation of the recommendations arising from the analysis.

The Committee notes that the comments made by the MSICG largely echo those made by UNSITRAGUA and concern the precarious status, conditions of service and conditions of work of labour inspectors, as well as the impact of this precariousness on the conduct of labour inspectors when performing their duties in relation to their obligations.

The MSICG also reports pay inequalities between inspectors in the category of “professional assistant” and those in the category of “chief technician” to the detriment of the latter; the non payment of overtime; the lack of transport facilities available to labour inspectors and the failure to reimburse their travelling expenses; the lack of human resources within the inspectorate and the confinement of certain inspectors to administrative tasks and measures prohibiting them from performing certain inspection duties defined by law; the lack of initial training and subsequent training in the course of employment for inspectors; and the derisory size of the labour inspectorate’s budget and the number of inspections it carries out.

The Committee notes with interest that the collective agreement and the action plan drawn up between the Government and the ILO to improve the labour inspection system provide for measures designed to address to a large extent the concerns expressed by UNSITRAGUA and the MSICG, particularly those relating to the structure of the labour inspectorate and its tripartite aspect; the composition and qualifications of labour inspectors, as well as their conditions of service; the inspection methods; the procedure for taking legal action in the case of violations and the application of penalties; and the exchange of information for the purpose of preparing registers for use by the labour inspectorate.

Articles 4, 5(a) and 19 of the Convention. Structure of the labour inspectorate and tripartism. The Committee notes that, with a view to ensuring better coordination of labour inspection, the action plan drawn up by the Government and the ILO envisages that the services responsible for supervising general conditions of work and occupational safety and health will be merged and integrated into a single service under the supervision of the General Labour Inspectorate (IGT). It is recommended that this body should strengthen its role as a central authority, in particular by planning labour inspection activities across the entire territory and ensuring that inspections are no longer carried out solely in response to a complaint but are programmed in a proactive manner. It is also envisaged that the distribution of duties between inspectors will be reviewed, in particular supervisory duties and those related to conciliation in labour disputes, and that inspectors will be relieved of those duties which interfere with the effective discharge of those defined in Article 3(1) of the Convention. The reforms envisaged also include developing the tripartite nature of labour inspection. Under the action plan, this should be achieved through the consultation of the social partners within the Tripartite Committee on International Affairs and, in particular, through the creation of a national information campaign on the role of the labour inspectorate.

Articles 7, 9 and 10. Composition and qualifications of inspection staff. The above action plan and the collective agreement provide for the establishment of a specific selection procedure for candidates for the occupation of labour inspector based on minimum technical conditions and a system of career progression and classification. Furthermore, with a view to the rational redistribution of duties among inspectors, the action plan envisages the gradual strengthening of inspection staff assigned to enforcing the legislation on conditions of work and the protection of workers while engaged in their work. With regard to training, according to the Government, in the majority of cases, the training of inspectors depends on the opportunities offered for training. As an example it mentions the training sessions offered by the ILO Subregional Office and the regional and international cooperation agencies. The Government indicates that the MTPS is responsible for providing training for its officials for the purposes of carrying out their duties and applying the principles relating to public labour policy and that the action plan provides for initial training programmes and subsequent training in the course of employment to be agreed upon with technical institutes and universities to update the technical skills of inspectors, including by means of distance learning. A programme dealing specifically with occupational safety and health is to be created. The Committee notes a provision in the collective agreement designed to encourage MTPS officials to develop their skills on a voluntary basis by providing for the continued payment of wages for up to 40 days in the case of training (section 34.1 of the agreement).

Article 6. Conditions of service of labour inspectors and professional code of ethics. Like UNSITRAGUA in 2004, the MSICG heavily criticizes the disciplinary and dismissal procedures applied in the event of professional misconduct under the Civil Service Act. The organizations allege unilateral decisions relating to suspension or final dismissal, the arbitrary nature, in practice, of the definition of professional misconduct by the competent authority and the denial of the presumption of innocence and call for the establishment of a defence mechanism providing for the right to appeal against verbal or written warnings as well as guarantees protecting labour inspectors from the immediate effects of dismissal decisions through the right to reinstatement and payment of wages.

The Committee notes that the collective agreement contains numerous provisions on the administrative career system, the selection and promotion conditions, the conditions relating to transfers, the reassessment of posts and the duties and salaries of all public servants. Its implementation should result in an adjustment of the conditions of service of labour inspectors and all other public servants employed within the Ministry. The provisions relating to the disciplinary rules seem to address the concerns of the trade union organizations relating to the presumption of innocence and the right of defence and appeal by providing, in particular, for the participation of the SIGEMITRAB Executive Committee in the defence procedure for the public servants concerned.

Furthermore, the collective agreement provides for the granting of advances to cover the professional travelling expenses incurred by labour inspectors and their reimbursement. The Committee notes that a specific recommendation to that end is also included in the action plan. Given the period of validity of the collective agreement, the wage increase provided for under section 37 of the agreement for public servants employed within the Ministry of Labour should have started to take effect in April 2009 with a view to full implementation the following year.

In reply to the allegations of UNSITRAGUA concerning the lack of probity of certain labour inspectors, the Government indicates that the supervision of the conduct of labour inspectors has been strengthened, including in their carrying out of inspections, by means of a supervisory programme targeting regional and subregional inspection offices. It points out that directors have been given instructions to strengthen the supervision of labour inspectors and mentions the preparation of an information and dissemination campaign targeting the public in general and workers in particular, the aim of which is to encourage people to report any suspicion of public servants of the Ministry of Labour having a direct or indirect interest in the matters within their remit and to allow the application of the disciplinary procedures provided for under the Civil Service Act and the collective agreement.

Article 12, paragraph 1, Articles 13, 15(c), 16 and 19. Method and performance of inspections. The Committee notes that the action plan provides for the planning of activities at the national level and cooperation to that end with the Guatemalan Social Security Institute (IGSS). Furthermore, it provides for the preparation of procedural manuals and technical manuals, checklists, registers, inspection report forms and the use of notifications. The performance of programmed inspections will ensure the presence of inspectors in workplaces no longer solely in response to complaints (which is the case in 90 per cent of inspections according to the analysis), but also in the interests of prevention and dissuasion, while preventing untimely inspections of the same workplace by different units. This will ensure better respect of the obligation of confidentiality relating to complaints since the visit of an inspector in a workplace will no longer be systematically perceived by the employer as the result of a complaint. The Committee also notes that, in the context of the “Cumple y Gana” project, a practical guide to inspection procedures was published in October 2008. This guide covers, in particular, the ethical principles of inspection.

Articles 17 and 18. Legislation relating to the prosecution of violations and the application of penalties. Referring to its previous observation in which it mentioned the point of view expressed in 2005 by the former World Confederation of Labour (WCL) concerning the power of inspectors to impose administrative sanctions on those responsible for violations, the Committee notes the documents provided in reply by the Government (including a copy of the documentation relating to legal proceedings initiated by a labour inspector against an enterprise which had committed a violation and settled by an appeal body pursuant to a ruling of the Constitutional Court), as well as the provisions of the action plan concerning the future developments in this regard. The Committee notes that, as previously pointed out by the Government, following ruling Nos 898-2001 and 1014-2001 of the Constitutional Court, the provision of Decree No. 18-2001 which authorized the General Labour Inspectorate to impose fines directly on employers who have committed a violation has been repealed on the grounds that it is unconstitutional and that this power is assigned to the courts under articles 103 and 203 of the National Constitution and section 135 of the Act on the judicial system.

The Committee notes that one of the recommendations arising from the analysis of labour inspection is to envisage the possibility of defining, by means of consultations held within the Tripartite Committee on International Labour Standards, an administrative procedure allowing the General Labour Inspectorate to impose penalties subject to a right of appeal for employers. The action plan includes this recommendation but mentions the consultation of the Constitutional Court on the legal point raised rather than the consultation of the social partners. This solution would have the merit of speeding up the implementation of rulings and strengthening the authority and credibility of the labour inspectorate. Furthermore, in many cases, the immediate application of a fine would be more effective than lengthy proceedings in encouraging compliance with the legal provisions. It is also envisaged that the legislation will be supplemented with a legal provision defining the specific offence of obstruction of labour inspectors in the performance of their duties and establishing the penalty to which those responsible shall be liable. In this regard, the Committee refers to the opinion formulated in its 2007 observation.

Article 11. Material working conditions of labour inspectors. Referring to its 2007 observation in which it noted the improvements pointed out by the Government in this regard (in particular, provisions facilitating the reimbursement of inspectors’ professional travelling expenses and the granting of advances for that purpose), the Committee notes the Government’s announcement of a thorough review of the material needs of the inspectorate carried out to provide the competent authorities with objective information to take into account in determining an appropriate budget for its effective operation. It notes with interest that the Ministry of Labour and Social Security has to that end taken steps to establish closer links with the other bodies of the executive authority and the legislative authority and that this exercise has facilitated the development of an operational plan for 2009 demonstrating the importance of labour inspection and emphasizing the need to increase its resources.

Article 5(a), Article 10, paragraph 1(a)(i), and Article 21(c), (f) and (g). Register of enterprises, exchange of information and statistics. The Committee notes that the analysis carried out of the labour inspection situation has highlighted the lack of a register of enterprises and that a recommendation has been made in that regard. The recommendation has been included in the action plan, which provides for the creation of a register at the national level within the Ministry based on the register developed and used by the IGSS. The Government has provided a copy of a draft cooperation agreement between the MTPS and the IGSS on the exchange of information relating to occupational safety and health in the textile industry, and the action plan provides for an agreement on the exchange of relevant data between the MTPS, the tax authorities and the registrar of companies.

The Committee requests the Government to provide information in its next report on the measures implemented under the collective agreement and the action plan with regard to the matters mentioned above, as well as a copy of any relevant text or draft text, and to indicate to the Office any difficulties encountered.

Further to its previous comments, the Committee also requests the Government once again to provide a copy of the legal provisions in force concerning the mechanism to compensate labour inspectors for overtime.

Furthermore, the Committee would be grateful if the Government would provide information in reply to the allegation made by the MSICG concerning the wage discrimination against inspectors in the category of “chief technicians”.

Finally, noting the statistics on inspection activities provided by the Government with its report, the Committee requests the Government to indicate whether the measures defined in the action plan to strengthen the labour inspection system have been taken to enable the central authority to publish and transmit to the ILO as soon as possible an annual report as required under Articles 20 and 21 of the Convention.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee refers the Government to its observation and draws its attention to the following points.

Articles 2 and 23 of the Convention. Scope of the labour inspection system. In its previous comments, the Committee asked the Government to indicate the branches of the economy of the category 029 workers whose contracts are renewed, according to the Trade Union Confederation of Guatemala (UNSITRAGUA), only if funds are available. UNSITRAGUA alleged that these workers do not have the statutory entitlements of permanent employees and are not paid for hours worked in excess of the normal working day. Once again, the Government’s only response is that these employees do not have the status of public employees or servants. It provides no information allowing the Committee to assess how supervision of the conditions of such workers employed in workplaces covered by the Convention is ensured. It accordingly repeats its request for information in this respect and asks the Government to take the necessary steps to extend to these workers, if this has not already been done, the protection of the inspection system established by the Convention.

Article 3, paragraph 1(b). Provision of information and advice to employers and workers. UNSITRAGUA objected that resolution LPR7ahd 6133‑2002 of 25 July 2002, by which the Labour Inspectorate refused to take a position on breaches by private enterprises of the regulations on overtime pay. It also alleged negligence on the part of the inspectorate in certain situations where its intervention was required. As to the first point, according to the Government the length of the ordinary working day, according to the Constitution, is six, seven or eight hours a day and 36, 42 or 44 hours a week depending on whether it falls in the night, combined or day period. All work done outside these periods must be duly remunerated as overtime. As to the shortcomings and negligence of the inspectorate alleged by UNSITRAGUA, the Government explains that the cases cited qualified as technical proceedings, requiring the assistance of a lawyer. Intervention by the Labour Inspectorate would not have been appropriate. According to the Government, the relevant resources were better used where they were needed. The Committee observes that the Government does not account for the inspectorate’s refusal to provide information and advice on the application of the working time regulations, or any information on investigations to clarify the alleged offences. It notes that section 289 of the Labour Code requires the General Labour Inspectorate to respond to consultations on the application of legal provisions falling within its competence, at the request either of other bodies of the Ministry, or of workers or employers, and to publish the consultations to serve as a reference in the areas concerned. The Government is asked to provide explanations as to why the Inspectorate refused to provide the advice requested, and to supply documents allowing an assessment of how effect is given in practice to the abovementioned provision of the Labour Code.

Article 15(c). Absolute confidentiality of the source of complaints and any link between a complaint and a visit of inspection. Further to its previous observation on this point, raised previously by UNSITRAGUA, the Committee notes that according to the Government, the principle of the confidentiality of the source of complaints is observed unless the worker decides otherwise.  The Government also states that confidentiality of personal data is guaranteed by article 30 of the National Constitution. However, it does not specify, as this provision of the Convention requires, the manner in which it is established that labour inspectors must refrain from intimating to the employer or his representative that a visit of inspection was made in consequence of the receipt of a complaint. The Committee requests the Government to provide information on the manner in which effect is given in law and in practice to this important aspect of the principle of confidentiality, the aim of which is to protect workers against reprisals by employers. If no measures have been taken to this end, it would be grateful if the Government would take the necessary steps rapidly and would keep the ILO duly informed. It hopes that the Government will not fail to provide copies of any decisions penalizing employers found to have taken reprisals, and copies of any documents showing the manner in which protection is ensured for workers threatened with dismissal for pointing out breaches of the legislation.

Articles 19, 20 and 21. Periodical reports and annual report on the functioning of the labour inspectorate. The Committee notes with interest that the Government has at last sent statistics on the number of enterprises in activity (between 1995 and 2004), the number of workers employed (between 2002 and 2004) and industrial accidents (for 2005). It also notes from information available at the ILO that the project “Centoamérica cumple y gana” has been extended to the regional labour administration offices, inter alia, through the installation of an electronic system for the purpose of inspection processing and follow up, and by providing the various offices with electronic equipment, computers and printers for the same purpose. The Committee hopes that the measures adopted in the context of the “Centoamérica cumple y gana” project will facilitate the production by the local inspection offices of periodical reports on the results of their work, as required by Article 19, and that these reports will enable the central inspection authority to prepare an annual report in accordance with Articles 20 and 21. It reminds the Government that guidelines are to be found in Part IV of Recommendation No. 81, on how the information required by Article 21 might be presented to good effect.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s detailed report for the period ending on 1 September 2006 containing information in reply to observations of October 2002 and August 2004 by the Trade Union Confederation of Guatemala (UNSITRAGUA), accompanied by abundant documentation. It also takes note of the new comments by UNSITRAGUA received at the Office on 21 November 2005, and of comments made on 7 September 2005 by the World Confederation of Labour (WCL, now International Trade Union Confederation – ITUC).

The observations by UNSITRAGUA again address the impact of labour inspectors’ conditions of service (inadequate pay, limited career prospects) and conditions of work (insufficient transport facilities and office equipment) on their tendency to depart from the ethical principles that should govern the performance of their duties. In carrying out visits, inspectors are inclined to show some indulgence towards persons, generally employers, who provide them with the transport facilities they need for travel. UNSITRAGUA further asserts that the inspectors are victims of influence peddling which diverts them from the purposes of their work. It cites instances of former labour inspectors transferring to the private sector and using their ties with former colleagues still in service to obtain favours from them for the enterprises for which they work. Their unstable economic position leads some inspectors to maintain personal relations with employers and accept gifts from them in exchange for information about the date of a forthcoming inspection visit, or assurances of impunity. Procedures for complaints of wrongful dismissal are slow and marked by a blatant lack of resolve, as inspectors more often than not encourage the workers concerned to accept the arrangements proposed by the employer, with no regard for equity, or else forego their rights. Labour inspectors appear to treat their profession as a mere temporary occupation pending more lucrative employment in the private sector.

The abovementioned organization is also of the view that the lack of training for inspectors in subjects pertaining to international labour Conventions, and their lack of experience in enforcing the legislation, account for the fact that they are unable to identify abuses that are not covered by the legislation and bring them to the attention of the competent authorities, as required by Article 3, paragraph 1(c), of the Convention.

Lastly, UNSITRAGUA asserts that some labour inspectors who have been reported for interfering in trade union matters remain unpunished.

1. Articles 6 and 15(a). Need to improve the conditions of service of labour inspectors in order to secure observance of the ethical principles of the profession. According to the Government, the national Constitution establishes that public employees and officials serve the State and not any political party. In comparison to the pay scales of other workers with a similar level of training and responsibility, the remuneration of inspectors is within the average. After considerable efforts to improve matters, an increase of 300 quetzales a month was to apply from July 2006. The Government supplements the above information with texts on the composition of the remuneration and allowances of labour inspectors and other categories of public servants. The Government nevertheless considers that inspectors cannot be accused of seeking better pay conditions in the private sector.

As to the allegation that inspectors lack probity in the performance of their duties, the Government states that the reports drawn up by inspectors can be communicated to those concerned in accordance with the procedure established in the Code of Civil and Commercial Procedure, but that the reports are fully valid until shown to be false or biased. An inspector found guilty of false or biased reporting is subject to penal or civil sanctions, or even dismissal, pursuant to statutory procedures.

With regard to the allegation of interference in trade union affairs, the Government states that the case went to trial and the inspector was acquitted on the grounds that he had acted within the law. This can also be seen from internal correspondence between the Ministry’s Human Resources Director and the Subdirectorate of International Relations.

While taking due note of this information, the Committee again asks the Government to ensure that the legislation is supplemented by provisions that expressly forbid inspectors to have any interest whatsoever, whether direct or indirect, in the workplaces under their supervision, including any form of social or material advantage the inspector might draw himself or indirectly through a third party. It would be grateful if the Government would provide information on all progress made in this respect and to send copies of any documents attesting to the application, in practice, of the procedure dismissing a labour inspector on grounds of conduct that is contrary to the provisions of Article 15(a) of the Convention.

Referring to paragraphs 209 to 216 of its General Survey of 2006 on labour inspection, the Committee points out to the Government that in order to attract and retain qualified inspection staff, it is necessary to provide them with a level of remuneration and career prospects that are commensurate with the importance and complexity of their duties, and to ensure that they are independent of improper external influences.

Further to its previous comments, the Committee trusts that the Government will not fail to provide a copy of the text mentioned in the report received in 2004, concerning the mechanism to compensate labour inspectors for overtime.

2. Articles 11 and 16. Need to improve the working conditions of inspectors so that they can supervise application of the legislation effectively, inter alia, by frequent inspection of workplaces. In response to UNSITRAGUA’s allegations, the Government states that despite a chaotic economic situation, the labour inspectorate carried out its functions through offices located in the 22 departments of the country, in accordance with the provisions of the regulations on the administrative decentralization of the Ministry of Labour and Social Security (Agreement No. 182-2000). The Government states that the Ministry having moved, inspectors working in the capital are now housed in spacious new offices with modern computer equipment. As for transport facilities, the Government indicates that the departmental offices and the central headquarters of the inspectorate have a fleet of some 20 vehicles to cover the most urgent needs. The Committee also takes note of Governmental Agreement No. 397-98 (settlement of travel allowances for personnel carrying out functions within the Executive and the decentralized and autonomous bodies of the Executive State), sent by the Government, allowing labour inspectors either an advance or a payment to cover their accommodation, food, transport and other related costs in the event of duty travel outside their ordinary place of work. The Committee notes with interest that for travel within the capital, Agreement No. 17“A”-2006 of 1 February 2006 of the Ministry of Labour and Social Security grants, in Guatemala City, an indemnity of 10 quetzales intramuros and, according to the Government, 28 quetzales for travel extramuros. It also notes with interest the documents showing settlement of the arrears of travel allowances.

The Committee nonetheless notes that, according to the statistical data for the period 2003–05, inspection visits were carried out for the most part as a result of complaints, as the work of the labour inspection services continues to focus mainly on procedures for the settlement of labour disputes. The Committee requests the Government to take all necessary steps to get the public authorities to accord the labour inspectorate priority commensurate with its social and economic purposes so that the resources allocated to it in forthcoming budgetary decisions by the State are sufficient to secure the staff and material resources necessary to its operation, in accordance with Article 3, paragraph 1, and Article 16. The Government is asked to provide information on any measures taken to this end and on the results obtained.

3. Article 7 and Article 3, paragraph 1(c). Training for inspectors enabling them to contribute to improving the legislation. In response to UNSITRAGUA’s objection that inspectors are insufficiently trained and lack the ability to identify voids in the legislation that need to be filled, the Government states that applicants for labour inspection posts must have completed four of the six years of study required to practice as a lawyer or a notary. In the Government’s view, this requirement ensures that the applicant has the necessary qualifications to become a labour inspector, including knowledge of international labour law. The Committee takes due note of this information. It nonetheless asks the Government to take steps to ensure, in accordance with Article 7, paragraph 3, that when they are recruited, labour inspectors receive adequate training for the performance of their duties, including training to enable them to identify gaps in the legislation and bring them to the notice of the competent authority. It hopes that the Government will not fail to provide information on progress made in this respect.

4. Articles 13, 17 and 18. Inspectors’ role in the punishment of offences. The WCL refers to discussions in a tripartite committee in 2005 in which the workers’ representatives pointed out the advisability of empowering labour inspectors to impose administrative sanctions, since the judicial authority intervenes only in the event of refusal to execute the sanction. The Government’s explanations on the matter indicate that Decree No. 18-2001 has been repealed as unconstitutional in respect of its provisions that empower the General Labour Inspectorate to impose sanctions. Since November 2004, this power has been vested in the judicial authorities of first instance. The Committee reminds the Government that, according to the Convention, the power to issue orders and the power to bring legal proceedings may both be exercised either directly by the inspectors or by other authorities at the request or recommendation of labour inspectors. The conditions for exercising these powers are defined in Articles 13 and 17. The Convention contains no provision specifying the authority competent to impose penalties. According to Article 18, penalties must be provided for by national laws or regulations and effectively applied. They must furthermore be adequate. The Committee would be grateful if the Government would provide copies of the texts governing the prosecution and punishment of breaches of the legislation on conditions of work and the protection of workers while engaged in their work, and of obstructions to the performance of labour inspectors’ duties.

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

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

Also referring to its observation, the Committee draws the Government’s attention to the following points.

Article 6 of the Convention. The Committee would be grateful if the Government would communicate a copy of the "Manual for the Labour Inspector", mentioned in its report.

Articles 10 and 16. Referring to its previous comments, the Committee notes that the general labour inspectorate is divided into two sections, one responsible for the supervision of labour centres and enterprises and the other for the settlement of disputes and the investigation of complaints relating to conditions of work. According to a document attached to the Government’s report on the implementation of Convention No. 129, there are 276 labour inspectors in the structures of the Ministry of Labour throughout the country. In 2003 and 2004, they dealt respectively with 4,601 and 2,098 complaints alleging violations of the labour legislation, each of them giving rise to a minimum of two inspections. The Committee notes that neither the number of industrial and commercial workplaces liable to inspection, nor that of the workers employed therein are provided, and that statistics on the number and frequency of inspection visits conducted for reasons other than complaints are also missing. The Government is requested to take measures to ensure that such data are also communicated to the ILO so that an assessment can be made of the level of coverage of the labour inspection system in relation to the needs.

Articles 12, paragraph 1(a) and (b). The Committee notes that, under section 281(a) of the Labour Code, labour inspectors are authorized to inspect workplaces at any hour of the day, and at night, where work is performed at night. The Government also indicates in its report, in relation to Article 15(a), that the initiative to inspect workplaces is not taken by inspectors, but is part of a hierarchical procedure, and that the workplaces to be inspected may, in the last resort, be determined by the general directorate. The Committee emphasizes the vital importance attached by the Convention to the right of inspectors to enter workplaces freely and without prior notice. It therefore requests the Government to ensure that measures are taken so that the right of inspectors to enter workplaces freely is not limited to the normal working hours of such workplaces. As highlighted by the Committee in its 1985 General Survey on labour inspection, it is important that inspectors also be allowed to exercise this right at times when workplaces are closed or machines are not in use, as certain technical controls of machines and equipment cannot be carried out when they are in use. Inspections outside official working hours also allow the supervision of the unlawful use of overtime work and illegal working conditions which may be imposed on clandestine workers (paragraphs 160 and 161).

Furthermore, the practice of making the choice of the final selection by the workplaces to be inspected subject to a final decision of the central authority is manifestly contrary to both the spirit and the wording of Article 12, the objective of which is to ensure the optimal effectiveness of inspections, for which reason paragraph 2 provides for the possibility for labour inspectors to refrain from notifying the employer or her or his representative of their presence in the workplace on the occasion of an inspection. The Committee requests the Government to ensure, in the light of paragraphs 158 and 159 of the General Survey, that measures are taken to bring the law and practice rapidly into conformity with the Convention, taking into account, where appropriate, the general orientations provided by the central labour inspection authority and any national labour inspection campaigns in specific fields.

Article 15(b). The Committee notes that section 281(k) of the Labour Code provides for the dismissal of any inspector who has accepted gifts from an employer, workers or trade unions. It notes that, in response to its request for further details concerning the control procedures ensuring that inspectors have no direct or indirect interest in the enterprises under their supervision, the Government refers to the selection procedure for the enterprises to be inspected, a subject that is covered in the comments on Article 12 above.

In the view of the Committee, although the prohibition from accepting gifts is part of the prohibition on inspectors from having any direct or indirect interest, as prescribed by the Convention, it is not sufficient to cover all the aspects of this prohibition. The concept of a direct or indirect interest in practice covers any form of social or material advantage which inspectors might obtain from the activity of the workplace under their supervision, directly themselves or indirectly through third persons (such as relatives). The above provision of the Labour Code is clearly not sufficiently broad to guarantee this level of detachment. It will therefore have to be supplemented in sufficiently clear terms for this purpose.

On the other hand, the Committee considers that not only is the selection by the central authority of the workplaces to be inspected contrary to the objective of the Convention, but it also does not constitute an obstacle in itself to inspectors having a direct or indirect interest in the workplaces to be inspected and, moreover, serves to delay the inspection, which may prejudice its relevance and effectiveness.

The Committee therefore requests the Government to take appropriate measures to ensure that the legislation complies fully with Article 15(a) of the Convention and to keep the ILO informed of any progress made in this regard.

Articles 20 and 21. The Committee notes that no annual inspection report has been received by the ILO. It invites the Government to refer to paragraphs 272 et seq. of its General Survey, in which it indicates the importance to be attached to the publication and communication to the ILO of such a report and to ensure that the central labour inspection authority rapidly meets its obligations in this regard. The Committee requests the Government to provide information on any progress made in this respect.

Labour inspection and child labour. Referring to its general observation of 1999, the Committee hopes that the Government will take necessary measures to increase the involvement of the labour inspectorate in combating child labour and that relevant information will be supplied in its next report and also, as soon as possible, in an annual labour inspection report.

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.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Referring also to its observation, the Committee would be grateful if the Government would provide information on the following points.

Article 6 of the Convention. The Committee requests the Government to keep the ILO informed of developments relating to the draft conditions of service of labour inspectors announced in its report.

Articles 10 and 16. Noting the Government’s indication of an increase in the staff of the Labour Inspectorate during the year 2000 and of the establishment of a unit responsible for carrying out routine inspections, the Committee however notes that the statistics for inspections contained in the tables appended to the Government’s report of 3 September 2001 differ from those contained in the Labour Statistics Bulletin 2000, as well as from those in the report dated 28 August 2002. The Government is once again requested to provide full and precise information on the number and geographical distribution of labour inspectors by category, as well as statistics of inspections presented, if possible, in the manner recommended in points (c) to (d) of Part IV of Recommendation No. 81, which supplements the Convention.

Article 15(a). With reference to its previous comments, the Committee notes that, according to the Government, the supervisory procedures have been strengthened so as to ensure that labour inspectors do not have a direct or indirect interest in the enterprises under their supervision. The Committee requests the Government to describe these procedures and to provide a copy of any relevant text.

Articles 20 and 21. While noting the information contained in the Labour Statistics Bulletin 2000 relating to inspections and employment accidents, the Committee would be grateful if the Government would rapidly take measures to ensure the publication and communication to the ILO by the central labour inspection authority within the time limits set out in Article 20, of a general annual report on the work of the inspection services under its control, containing the information required on all the matters set out in Article 21.

Workplaces covered by the labour inspection system. The statistical tables of inspections show trade unions as a branch of activity in the same way as commercial and industrial workplaces. Inspections of them are carried out by labour inspectors, either upon request or automatically. The Committee would be grateful if the Government would indicate the nature and purpose of such inspections.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s reports, the partial replies to its previous comments, the attached documents and the text of Decree No. 18-2001 amending the Labour Code. It also notes the communication by the Government on 19 September 2002 of the observations made by the National Federation of State Workers’ Unions (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA) concerning the application of the Convention. The Committee notes that the Government do not reply to the points raised by these observations.

According to FENASTEG, the public administration interferes in the functions of labour inspectors. Furthermore, inspectors are not assured of stability of employment and do not have at their disposal the necessary resources and materials for the performance of their duties. It deplores the failure to comply with procedures for the application of the penalties imposed for infringements of legal provisions, and the exclusion from the scope of labour inspection of conflicts between State employees and their employers.

In the view of UNSITRAGUA, labour inspectors should not be confined to the sole function of supervision and taking action in the event of infringements and should also discharge the functions of mediation and the education of employers. It adds that the means of transport available to labour inspectors are inadequate and their expenses for professional travel are not reimbursed. Considering the remuneration of labour inspectors as being inadequate and describing as forced labour the performance by the latter of their work without pay outside normal working hours, the trade union has also made observations along the same lines concerning the application by the Government of Conventions Nos. 29 and 105 on forced labour. Finally, according to the trade union, the labour inspectorate does not have the capacity to protect workers making complaints against any reprisals.

Noting the Government’s indication of the existence of procedures for the payment of additional hours carried out by labour inspectors, the Committee would be grateful if it would provide a copy of any text and of any relevant documents or forms.

The Government is also requested to provide additional information on the manner in which effect is given in law and practice to Articles 6, 11 and 15 of the Convention concerning, respectively, the status and conditions of service of labour inspectors, the arrangements for the use of transport facilities and the reimbursement of travelling expenses for labour inspectors and; finally, the obligation of confidentiality with regard to the source of any complaint bringing to their notice a defect or breach of legal provisions.

Articles 5 and 18 of the Convention. The Committee notes with interest the new provisions introduced by Decree No. 18 of May 2001 amending sections 269 et seq. of the Labour Code establishing procedures for the imposition of penalties with a view to ensuring that they are effectively applied in cases of infringements that are duly reported by labour inspectors. Noting that these provisions usefully supplement section 281(c) of the Labour Code, under which labour inspectors are authorized to have recourse to public forces to bring to an end any resistance preventing them from discharging their functions, the Committee requests the Government to provide information on the application of this procedure in practice and on the progress achieved in the application of the legal provisions enforceable by labour inspectors.

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

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report for 1999 and the attached documents. It notes with interest the information concerning the various types of coordination between the inspection services and other public bodies and institutions conducting similar activities. It notes in particular that the labour inspection service maintains coordination in regard to supervision of the legal provisions relating to occupational health and safety with the National Social Security Institute and that seminars for labour inspectors were given in 1998 by a delegation of the Argentine Ministry of Labour.

The Committee notes with interest that, according to information available at the ILO, the modernization of the labour administration is planned in the framework of the international cooperation and technical assistance project entitled Modernization of Labour Administrations in Central America (MATAC‑ILO). It hopes that the Government will supply information regularly on the progress of this project in regard to the application of the provisions of this Convention and that measures will be taken, in particular, to publish and communicate annual labour inspection reports in accordance with the form and content prescribed in Articles 20 and 21 of the Convention.

The Committee notes the information that the number of labour inspectors rose between 1998 and 1999. It notes, however, a considerable decrease in this number in comparison with the numbers given by the Government in its 1995 report. The Government is requested to supply details allowing the Committee to assess the current labour inspection staffing situation in the light of the criteria laid down in Article 10 to ensure in particular that inspections of workplaces are as frequent and thorough as laid down in Article 16.

The Committee notes that, according to the Government, the transport facilities allocated to the inspection service are inadequate for its needs and that a modernization unit has been set up within the Ministry to take measures aimed at improving the situation in this regard. Drawing the attention of the Government to the provisions of Article 11, the Committee would be grateful if it would supply information on the transport means and facilities as well as on any financial arrangements established or envisaged to reimburse labour inspectors for any travelling and incidental expenses they incur in the performance of their duties.

The Committee once again requests the Government to supply details on the manner in which effect is given to Article 15(a) which stipulates that labour inspectors shall be prohibited from having any direct or indirect interest in the undertakings under their supervision.

Noting the statistics on inspections provided by the Government, the Committee requests it to give further information on the frequency of routine inspections.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report for the period ending 30 June 1997. It requests further information on a certain number of points.

Article 5 of the Convention. The Committee asks the Government: (i) to provide information on the particular forms of cooperation between the labour inspection and the Presidential Commission on Human Rights, the Human Rights Office (Procuraduría de los Derechos Humanos), the Office of the Public Prosecutor (Ministerio Público), the National Police (Policía Nacional), the General Directorate of Migration (Dirección General de Migración), and the Institute of Social Security; (ii) to indicate the measures that have been undertaken or are envisaged in order to ensure effective cooperation between the labour inspectorate and different government services in the area of prevention and supervision over the safety and health at work; and (iii) to indicate the body responsible for coordination of actions of inspection services and various governmental services in the area of safety and health at work.

Article 6. The Committee asks the Government to provide information enabling it to compare the average annual salary of labour inspectors with that of public officials and the average annual wage in Guatemala.

Article 7. The Committee asks the Government to provide details on the training opportunities for labour inspectors in the course of employment.

Article 8. Please provide information on the percentage of women appointed to the inspection staff in general and the relative percentage of women in higher grades of the labour inspection in particular.

Article 10. Please indicate whether there were any changes in the actual number of labour inspectors and their distribution among the capital and particular regions. Please also indicate whether ten new positions of labour inspectors, mentioned in the latest Government's report, have been established and what other measures have been undertaken or are envisaged in order to increase the number of labour inspectors.

Article 11. The Committee asks the Government to indicate the geographical distribution of cars and other means of transport furnished to labour inspectors in relation to the number of inspectors.

Article 15. The Committee asks the Government to provide information on the practical application of Article 15, paragraph (a) of the Convention and, in particular, on the criteria and the procedure for its enforcement.

Article 16. The Committee asks the Government to indicate: (i) the total number of workplaces liable to inspection; (ii) the number of workplaces inspected during the latest reporting period; and (iii) the usual period between two consecutive planned inspections at each single workplace.

Article 20. The Committee notes that no copy of the annual general report of the central inspection authority of Guatemala was received. The Committee asks the Government to provide a copy of such report within the time limits set forth by paragraph 3 of Article 20 of the Convention and to indicate the procedure for access to the report by an interested party.

Article 21. The Committee asks the Government to take into consideration that annual reports of the central inspection authority should deal in particular with the subjects listed in Article 21 of the Convention, including, but not limited to, statistics of industrial accidents and statistics of occupational diseases (Article 21(f) and (g)).

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information contained in the Government's report, in particular as regards the number of labour inspectors (98 inspectors, of whom 55 are in the metropolitan area). It requests the Government to indicate whether these numbers are considered to be sufficient, taking into account that the Government carries out inspection visits according to a set programme, to ensure that workplaces are inspected as often and as thoroughly as is necessary (Articles 10 and 16 of the Convention).

The Committee further notes that even though no annual inspection report has been transmitted to the ILO, the introduction of a system of ex officio inspections will allow the supply of statistical data on the subjects referred to in Article 21(c), (f) and (g). The Committee underlines the importance of the compilation and publication of annual inspection reports as a means of ensuring the proper functioning of the system of labour inspection. It hopes that such an annual report containing all the information required by Article 21 will be regularly transmitted to the ILO within the time-limits set by Article 20.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 20 of the Convention. The Committee hopes that annual reports on the activities of the labour inspection services will in future be provided within the time-limits set by the Convention.

Article 21. The Committee notes that, although the annual report on the activities of the inspection service for 1989 is concise and contains most of the required information, statistics of workplaces liable to inspection and the number of workers employed therein, industrial accidents and occupational diseases (points (c), (f) and (g)) are not included in the report. The Committee hopes that the necessary measures will be taken to ensure that these data are collected and included in the next annual report.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report on the Convention has not been received, although the annual inspection report for 1989 has been supplied. The Committee hopes that the Government will supply a report on the Convention for examination at its next session.

Article 20 of the Convention. The Committee hopes that annual reports on the activities of the labour inspection services will in future be provided within the time-limits set by the Convention.

Article 21. The Committee notes that, although the annual report on the activities of the inspection service for 1989 is concise and contains most of the required information, statistics of workplaces liable to inspection and the number of workers employed therein, industrial accidents and occupational diseases (points (c), (f) and (g)) are not included in the report. The Committee hopes that the necessary measures will be taken to ensure that these data are collected and included in the next annual report.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Article 20 of the Convention. The Committee notes that the annual reports on the work of the labour inspection services for 1987 and 1988 have not been received by the International Labour Office. It expresses the hope that, in future, these reports will be published and transmitted within the time-limits laid down by this Article of the Convention.