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

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

The Committee takes note of the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) in a communication of 30 August 2010, transmitted to the Government on 15 September 2010.

Articles 3, 10 and 16 of the Convention. Labour inspection system. The Committee takes note of the report of the high-level mission which visited Guatemala in May 2011 with regard to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In particular, it takes note with interest of the information provided by the General Labour Inspection according to which a special unit of the labour inspection has been set up in order to address issues related to the maquila sector. Inspections are taking place and the number of complaints has fallen even though there are still complaints in this sector. The economic benefits of enterprises (tax exoneration) can be revoked if violations of labour rights are observed. This has led to an improved supervision. Twenty-two investigations were carried out, benefits were withdrawn from four enterprises and 18 took measures to comply with labour laws following the indication by the Ministry of the Economy that they would no longer qualify for special benefits. The Committee requests the Government to continue to provide detailed information on the activities of the special unit of the Labour Inspectorate on the maquila sector and its results (number of visits, violations found with indications of the legal provisions concerned and action taken).

The Committee notes that, according to the MSICG, the inspectors do not perform their tasks adequately and their actions are not persuasive, while the data show that the budget of the Ministry of Labour and Social Welfare (MTPS) with regard to the Labour Inspectorate has been significantly reduced and that between 2009 and 2010 the number of inspectors employed fell from 197 to 185. The MSICG also denounces the fact that the duty of supervision of the labour inspectors has been replaced by the duty of conciliation and that it is common for inspectors to impose conciliation, a practice which has fostered impunity and weakened the effectiveness of the legislation, the application of which pertains to labour inspectors. According to the MSICG, the establishment of conciliation as a priority of the inspectorate, rather than supervision and verification of the facts reported, allows employers the necessary time to hide or plant evidence and may lead to the workers being deprived of the evidence necessary to lodge claims with the labour courts given that, in most cases, such evidence is to be found in documents, registers and situations that can only be verified by a labour inspector and to which the individual affected by the violation has no access. The MSICG also alleges that the inspectors display bias towards employers when performing their duties.

The Committee notes Circular No. 02-2011 issued by the General Labour Inspectorate and addressed to those inspectors performing conciliation duties, in which it is stated that once the conciliation mechanisms have been exhausted, the labour inspector has to fulfil his/her inspection functions. The Committee highlights that under section 281(e) of the Labour Code, labour inspectors must intervene with regard to any labour-related difficulties or disputes arising between employers and workers, or purely between employers or purely between workers, in order to prevent such difficulties or disputes from developing or to bring about an out-of-court settlement should they arise. According to the information provided by the Government, in 2010 the labour inspectors intervened in a total of 942 conciliation procedures relating to enterprises covered by the Promotion and Development of Export and Maquila Activities Act, while over the same period they carried out a total of 412 inspections targeting the same type of enterprise. Apparently, of these 412 visits, only 81 were carried out on the initiative on the General Labour Inspectorate, with the remaining 331 being performed as the result of denunciations.

The Committee refers the Government to paragraph 69 of its 2006 General Survey concerning labour inspection and yet again states that the primary duties of labour inspectors are complex and require time, resources, training and considerable freedom of action and movement, and that any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. Noting moreover that the functions of dispute resolution are often incompatible with the function of controlling the strict application of the law, the Committee calls the Government’s attention also to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes.

The Committee would be grateful if the Government would indicate the actual number of active labour inspectors and their geographical distribution, specifying how many of them perform duties within the scope of conciliation and the percentage of their working time that is devoted to this duty. The Committee would also be grateful if the Government would specify the criteria on the basis of which inspection visits are programmed.

The Committee requests the Government to indicate the measures adopted or envisaged both in law and in practice with the aim of dissociating the duty of supervision from that of conciliation and to relieve labour inspectors of duties other than those provided for in Article 3(1) of the Convention which could prejudice the authority and impartiality, including those relating to conciliation.

Articles 5(a), 12(1)(a) and 18. Free access of labour inspectors to workplaces liable to inspection, cooperation between the inspection services and the police, and penalties for obstructing labour inspectors in the performance of their duties. The Committee also notes that according to Ministerial Agreement No. 106-2011 issued by the MTPS in application of section 281(e) of the Labour Code, inspectors can request the assistance of the police should they be refused entry to workplaces, or should their lives and safety be in danger in certain circumstances such as: (i) when cases of under-age labour in circumstances considered to be the worst forms of child labour are denounced; (ii) in cases where the closure or possible closure of enterprises must be verified, in particular, those instigated by enterprises which enjoy the benefits provided for by the Promotion and Development of Export and Maquila Activities Act; (iii) when situations arise that, in the opinion of the General Inspector of Labour, the General Sub Inspectors of Labour or the departmental or municipal delegates of the Ministry, constitute emergencies; and (vi) more generally, when the circumstances require it. The Committee notes, however, that the final paragraph of section 4 of the aforementioned Agreement states that should the agents of the National Civil Police Force refuse to accompany the inspector, the General Inspector of Labour must forward a certified true copy of the report referring to this event to the Ministry of the Interior within three days of its receipt, for the purposes of the relevant legal proceedings. The Committee requests the Government to inform it of any measures adopted or envisaged with the aim of raising the awareness of the police concerning the importance of collaboration with the labour inspection services in the cases referred to with a view to guaranteeing access for labour inspectors to workplaces liable to inspection and to ensuring the protection of inspectors when their lives or safety are in danger within the framework of the exercise of their duties. The Committee would also be grateful if the Government would: (i) provide information on the impact of the cooperation of the police concerning compliance with labour legislation; (ii) transmit copies of inspection reports which refer to collaboration between police officers and labour inspectors in the exercise of their duties; (iii) specify the number of judgments handed down for obstructing labour inspectors in the performance of their duties and send copies of examples of such judgments.

Articles 5(a), 20 and 21. Inter-institutional cooperation for the exchange of information, the register of enterprises and the annual inspection report. General observations 2009 and 2010. The Committee notes with interest that the Government signed the Inter-Institutional Framework Agreement on the exchange of information between the Ministry of the Economy and the Ministry of Labour and Social Welfare in the framework of Decree No. 29-89, the Promotion and Development of Export and Maquila Activities Act, allowing the exchange of information and thus facilitating supervision by the General Labour Inspectorate. The Committee also notes with interest that, according to the Government, thanks to the technical cooperation project “Cumple y Gana”, a registration system (SIL) was implemented at the General Labour Inspectorate involving the establishment as of 2010 of a register of commercial enterprises which enjoy the benefits granted by the Promotion and Development of Export and Maquila Activities Act which contains all the information required under Articles 20 and 21 of the present Convention. The Committee notes however that, although the Government has provided documents concerning the register of the enterprises covered by Decree No. 29-89, it has not sent the annual report on the work of the inspection services, despite the undertaking it made to this effect in its 2010 report. The Committee requests the Government to provide information on the impact of the creation of the register of enterprises on the efforts made by the central authority to fulfil its obligations under Articles 20 and 21 with a view to publishing and transmitting to the Office an annual report on the work of the inspection services under its control within the time period envisaged by Article 20 and containing information on each and every one of the points listed under Article 21. The Committee draws the attention of the Government to the useful guidelines set out in the Labour Inspection Recommendation, 1947 (No. 81), with regard to the details and presentation of the information that must be contained in the annual report on inspection. Referring to its 2009 comments, the Committee requests the Government to send information on developments concerning the agreement on the exchange of data between the MTPS, the tax authorities and the Chamber of Commerce.

Articles 6 and 15(a). Conditions of service of labour inspectors, and professional code of ethics. With regard to its 2009 comments, the Committee notes with interest that the MTPS requested the ILO to provide technical support with the aim of drawing up draft regulations both for the MTPS and the General Labour Inspectorate and a study on the reclassification of posts and salaries (with the intervention of the Civil Service Office). The Committee would be grateful if the Government would provide information on developments concerning the elaboration of the draft regulations as well as the results and eventual recommendations made in the study on the reclassification of posts and salaries of the labour inspectorate.

Furthermore, the Committee notes with interest Ministerial Agreement No. 118-2011 of the MTPS which contains the Code of Conduct of the General Labour Inspectorate. The Committee observes that this Code contains fundamental principles and duties which must be observed by labour inspectors in the exercise of their functions and the commitment made by the General Labour Inspectorate to: (i) establish employment conditions which recognize the value of its staff and encourage appropriate behaviour and an honest environment; (ii) organize and facilitate opportunities for vocational development and to improve the competences of its staff; (iii) foster a culture based on professional and ethical behaviour; and (iv) ensure that the actions of the inspectors are carried out on the basis of the ethical principles of honesty, neutrality, objectivity and fairness. The Committee also notes that this Code envisages the establishment or appointment by the MTPS of an administrative unit responsible for receiving and processing denunciations concerning failure to comply with the principles and values contained in the Code which must be decided upon by the General Labour Inspectorate. The Committee requests the Government to provide information on any measures adopted with the aim of implementing the undertakings referred to in the Code of Conduct relating to the specific conditions of service of labour inspectors. The Committee also requests the Government to specify how the independence of labour inspectors is guaranteed in the framework of the said Code.

Article 7. Training of labour inspectors. With reference to its comments under Convention No. 87, the Committee underlines that the technical assistance of the ILO is necessary, among other things, for the training of labour inspectors in the area of freedom of association and hopes that this assistance will be provided in the near future. The Committee requests the Government to keep the ILO informed of all progress made in this regard. The Committee would also be grateful if the Government would specify whether the training programmes for labour inspectors have been implemented, including the specific programme on occupational safety and health, which it had announced would be agreed on with the technical institutes and universities.

Articles 10, 11 and 16. Human resources, financial and material means of the labour inspectorate and coverage of supervision needs. In its 2009 comments the Committee took note of 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 be taken into account in determining an appropriate budget for its effective operation. The Committee requests the Government to send information on the results of the abovementioned review concerning the material needs of the labour inspectorate, as well as on the measures adopted or envisaged from a legal and practical point of view to meet those needs. Moreover, the Committee would be grateful if the Government would specify the impact of these measures on the strengthening of human resources (with regard to inspection staff numbers) and the means of action (mainly means of transport and office equipment).

Articles 17 and 18. Adequate penalties and their effective application. In its 2009 comments the Committee noted that the action plan drawn up by the Government and the ILO included the recommendation, arising from the analysis of the labour inspection, to envisage the possibility of defining an administrative procedure allowing the General Labour Inspectorate to impose penalties subject to a right of appeal for employers and to supplement the legislation with a legal provision defining the specific offence of obstruction of labour inspectors in the performance of their duties and establishing the corresponding fine. The Committee requests the Government to send information on the measures adopted or envisaged so as to implement this recommendation of the abovementioned action plan and to supplement the legislation in the manner described and on any difficulties encountered concerning its implementation.